Burrell v. Uhler et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________________________________
Ako K. Burrell
Plaintiff,
v. 	9:22-CV-1178
(DNH/MJK)
Donald Uhler, et. al.
Defendants.
__________________________________________________________________
Ako K. Burrell, Plaintiff, pro se
Rachel Ouimet, Esq., Asst. Attorney General, for Defendants
Mitchell J. Katz, United States Magistrate Judge
To the Honorable David N. Hurd, U.S. District Court Judge:
REPORT-RECOMMENDATION
Senior United States District Court Judge David N. Hurd referred
Defendants’ motion for partial summary judgment to the Court for
report and recommendation.1 In this pro se civil rights action, Burrell
alleges that Defendants violated his First and Eighth Amendment
rights on numerous occasions. For the following reasons, this Court
1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
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recommends granting Defendants’ motion for partial summary
judgment.2
I. 	BACKGROUND
A. Facts
At all relevant times, Burrell was an incarcerated individual in
the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”) housed at Upstate Correctional
Facility (“Upstate C.F.”), and Defendants were employed at Upstate
C.F. (Def. Statement of Material Facts (“SOMF”), Dkt. 127-5, ¶¶ 1,3).
1. July 21, 2022 incident
On July 21, 2022, while Burrell was being transferred to 10
Building, Defendant Teneyck—who was not working that day because it
was his regular day off—told Burrell “until you stop filing grievances on
Sgt. Bullock, drop those Article 78; Habeas Corpus; Court of Claim
[actions] against Donnelly, Hess, Dumas, Superintendent Bishop and
Uhler, your [sic] not getting your Quran, mail, pictures, it’s not
2 Defendants do not move for summary judgment as to Burrell’s Eighth Amendment
excessive force and failure to intervene claims against Boyer, Smutz, Chase and
Martin as alleged in paragraphs 43, 44, and 57 of Burrell’s Complaint. (Def. Mem.
of Law, p. 2, fn. 3, Dkt. 127-1).
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happening.” (Complaint (“Compl.”), Dkt. 1, at¶42,); (Def. SOMF, Dkt.
127-5, at ¶ 12).
2. July 27, 2022 incident
On July 27, 2022, while Burrell was handcuffed and being
escorted to 11 Building, Defendant Boyer “grabbed the handcuff[,] held
them, used his free hand to pull down [Burrell’s] waistband down from
[his] pants, and then [his] boxers, and then [Defendant Boyer] used his
hand to examine [Burrell’s] anal cavity.” (Compl., Dkt. 1, at ¶ 43). That
same day, DOCCS created a Use of Force document noting an incident
involving Defendants Smutz, Chase, Seymour, Welch, Bronson, and
Burrell. (Def. SOMF, Dkt. 127-5, at ¶ 27).
3. August 7, 2022 incident
On August 7, 2022, Burrell submitted an “Inmate Claim Form”
alleging that Defendant Tupper—who was not working on the day of
the incident—removed papers from his cell. (Compl., Dkt. 1, at ¶48);
(Def. SOMF., Dkt. 127-5, at ¶¶43, 44). During this incident, Burrell
informed Defendant Tupper that “he needed those documents as
Exhibits in an Article 78 to redeem his good time loss . . . and to seek
employment upon release.” (Compl., Dkt. 1, at ¶48). In response,
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“Defendant Tupper replied, ‘well how about you drop your court shit
against my bosses, if not this shit is going in the garbage.’ He then
threw the documents in the trash.” Id. (cleaned up).
4. August 8, 2022 incident3
On August 8, 2022, Defendant Smutz threatened to tie Burrell up
and “let [him] get fucked real good” unless he dropped his complaints.
(Id. at ¶49). Burrell reported the threat to Hana, but Hana replied,
“well you deserve it, I’m not reporting nothing.” (Id.). 4
About an hour or two later, Defendants Smutz, Vesneske, Chase
and Yando began transferring Burrell from cell 10-A-5 to cell 10-B-8.
(Id.). Once Defendants ordered Burrell to exit cell 10-A-5, they placed
him in mechanical constraints, and then Defendant Vesneske
instructed Defendants Chase and Yando to “drag [Burell] down the
company” and “destroy his paperwork.” (Id. at ¶50). Defendants Chase
and Yando then “punched [Burrell] in the ribs, until he fell, . . . placed
3 While the Complaint alleges that this event took place on August 14, 2022, in
response to Defendants’ SOMF, Burrell admits that the use of force incident took
place on August 8. (Def. SOMF., Dkt. 127-5, at ¶ 58; Burrell SOMF, Dkt. 133, ¶ 58).
4 On February 15, 2023, Hana was terminated as a Defendant in this action. (Dkt.
9).
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him in a body hold, [which] caused his hands, that were handcuffed
behind his back, to be held up behind his head” dislocating [both
shoulders.]” (Id.). Defendant Vesneske then asked Burrell: ‘“[a]re you
going to drop those motions now?’” (Id. at ¶51). Burrell did not respond.
(Id.).
After this, Defendants Vesneske and Smutz ordered Defendants
Chase and Yando to ram [Burrell’s] face into the cell wall of B-Company
8 cell. (Id.). Following orders, Defendants brought Burrell to another
cell and rammed his face into the cell wall (Id.). After that, Defendants
Chase, Dumas, and Yando dragged Burrell into the cell and “began
punching, kicking, [and] spitting on him.” (Id. at ¶52).
Finally, Defendants Yando, Dumas and Chase used strips from a
torn shirt to “hog-tie” Burrell. (Id. at ¶53). Both Defendants Dumas and
Yando removed Burrell’s clothes then and one of those Defendants bit
Burrell’s penis causing it to bleed. (Id.). Then, Defendant Chase, under
Defendant Smutz’s orders, penetrated Burrell’s anal cavity, causing it
to bleed. (Id.). Burrell claims that he was denied medical treatment for
these injuries. (Id. at ¶ 54).
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The same day, DOCCS created a Use of Force document noting
that Defendants Smutz, Vesneske, Chase, and Yando were present for a
use of force incident involving Burrell. (Def. SOMF, Dkt. 127-5, at ¶ 58).
Burrell admits that Defendant Dumas did not have any involvement in
this Use of Force incident. (Burrell SOMF, Dkt. 133, at ¶59).
Defendant Smutz authored an Incarcerated Individual
Misbehavior Report, charging Burrell with refusing a direct order,
violent conduct, movement regulation violation, interference with
employee, and threats. (Def. SOMF, Dkt. 127-5, at ¶60).
5. August 31, 2022 incident
On August 31, 2022, Burrell alleges that Defendants Burroughs
and Demers—who Burrell admits were not working on that date—
refused to provide him with photocopies for his Article 78 proceeding
until he dropped “the Art. 78, Habeas Corpus, Court of Claim [actions]
against Uhler [and] Bishop,” and the grievances Burrell filed on the
24th. (Compl., Dkt. 1, at ¶ 56); see also (Burrell’s SOMF, Dkt. 133, at ¶
70). Defendants Burroughs’ and Demers’ purported refusal caused
Burrell to miss a filing date in Albany County Court. Id.
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6. September 1, 2022 incident
On September 1, 2022, while Burrell was waiting to attend
Residential Rehabilitation Unit (“RRU”) programing, he “stuck his
hands out [] to Defendants A. Martin and Rowe.” (Compl., Dkt. 1, at
¶57). In response, Defendants Martin and Rowe told Burell “your [sic]
not going to program, nigger, you wrote grievance[s] [about] Sgt.
Bullock, . . . and filed Art. 78, Habeas Corpus & Court [of] Claim
[actions] against Uhler [and] Bishop[.]” Id. Defendants Rowe and
Martin then sprayed Burrell with “OC spray.” (Id.). Burrell alleges that
this incident “caused a Tier III appeal to be destroyed” and he lost
vision in his right eye. (Id.).
B. Procedural History
On November 10, 2022, Burrell commecned this action by filing a
Complaint. (Compl., Dkt. 1). On February 15, 2023, Senior Judge Hurd
reviewed the Complaint, under 28 U.S.C. §1915, and dismissed all
claims, except Burrell’s: (i) Eighth Amendment excessive force and
failure to intervene claims against Defendants Boyer, Welch, Seymour,
Chase, Smutz, Vesneske, Yando, Dumas, and Martin; (ii) Eighth
Amendment deliberate indifference to medical needs claim against
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Defendant Fleurny;5 and (iii) First Amendment retaliation claims
against Defendants Teneyck, Fluerny, Welch, Seymour, Chase, Smutz,
Uhler, Bronson, Tupper, Vesneske, Yando, Dumas, Burroughs, Demers,
and Martin.6
Defendants now move for partial summary judgment. (Dkt. 127).
Specifically, Defendants seek summary judgment on: (1) Burrell’s First
Amendment retaliation claims against Defendants Teneyck, Welch,
Chase, Seymour, Smutz, Bronson, Uhler, Tupper, Vesneske, Yando,
Dumas, Burroughs, Demers and Martin; and (2) Burrell’s Eighth
Amendment excessive force and failure to intervene claims against
Welch, Seymour, Smutz, Vesneske, Yando and Dumas.
5 Defendant Fleurny was not served in this action. The Office of the New York State
Attorney General does not represent Defendant Fleurny and will not be addressing
any claims against Defendant Fleurny in this motion. (See Def. Mem. of Law, pg. 3,
fn. 2). Because Burrell failed to timely serve Defendant Fleurny, the Court sua
sponte dismisses the action against him without prejudice. See Fed. R. Civ. P. 4(m).
6 The names of Defendants Vesneske, Yando, Teneyck, Bronson and Demers are
misspelled in the Complaint. The Court refers to each individual with the correct
spelling of their names. (Dkt. 127-1, Def. Mem., at fn. 2).
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II. 	STANDARD OF REVIEW
Summary Judgment
“Summary Judgment is appropriate only if the movant shows that
there is no genuine issue as to any material fact.” Tolan v. Cotton, 572
U.S. 650, 656-57 (2014) (cleaned up). When deciding if there is a
genuine issue of material fact, courts “must view the evidence in the
light most favorable to the” non-moving party. Id. at 656 (cleaned up).
Likewise, courts must “resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party opposing
summary judgment.” Kessler v. Westchester County Dep’t of Social
Services, 461 F.3d 199, 206 (2d Cir. 2006). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“The moving party bears the initial burden of showing that there
is no genuine dispute as to a material fact.” CILP Assocs., L.P. v.
Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) “When
the moving party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec., 475 U.S. at 586. “The
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nonmoving party may not rely on mere conclusory allegations nor
speculation but instead must offer some hard evidence showing that its
version of the events is not wholly fanciful.” D’Amico v. City of New
York, 132 F.3d 145,149 (2d Cir. 1998) (cleaned up).
“If the defendant in a run-of-the-mill civil case moves for summary
judgment,” judges “must ask” themselves “not whether” they “think the
evidence unmistakably favors one side or the other but whether a fair-
minded jury could return a verdict for the plaintiff on the evidence
presented. The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). “A court cannot credit a plaintiff’s
merely speculative or conclusory assertions.” DiStiso v. Cook, 691 F.3d
226, 230 (2d Cir. 2012).
III. 	GENERALLY APPLICABLE LAW
Section 1983 establishes a cause of action for “the deprivation of
any rights, privileges, or immunities secured by the Constitution and
laws of the United States.” German v. Fed. Home Loan Mortg. Corp.,
885 F. Supp. 537, 573 (S.D.N.Y. 1995) (cleaned up). “Section 1983 itself
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creates no substantive rights, it only creates “a procedure for redress for
the deprivation of rights established elsewhere.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993) (citation omitted). “To establish a
defendant's individual liability in a suit brought under Section 1983, a
plaintiff must show “the defendant's personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New Haven, 720
F.3d 133, 138 (2d Cir. 2013) (cleaned up).
IV. 	DISCUSSION
The Court recommends that the District Court grant Defendants’
motion for partial summary judgment and dismiss Burrell’s Complaint.
The Court first recommends the District Court adopt Defendants’
SOMF as true because Burrell failed to comply with Local Rule 56.1(b).
Next, the Court recommends the District Court find that Burrell failed
to exhaust the administrative remedies that Upstate C.F. made
available to him. Burrell’s Complaint must therefore be dismissed.
A. The District Court should adopt Defendants’ SOMF as
true because Burrell failed to comply with Local Rule
56.1(b).
The District Court should adopt Defendants’ SOMF as true. Pro se
litigants are notified that the failure to comply with the Northern
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District’s local rules can result in the adoption of their opposition’s
SOMF if the SOMF is well supported. Here, Burrell did not comply with
Local Rule 56.1(b) and Defendants’ SOMF is well supported. As a
result, this Court recommends the District Court adopt Defendants’
SOMF as true.
“While courts are required to give due deference to a plaintiff’s pro
se status, that status ‘does not relieve plaintiff of his duty to meet the
requirements necessary to defeat a motion for summary judgment.’”
Jackson v. Moore, No. 9:21-CV- 1001 (GTS/ATB), 2023 WL 4710869, at
*2 (N.D.N.Y. Apr. 14, 2023) (quoting Jorgensen v. Epic/Sony Records,
351 F.3d 46, 50 (2d Cir. 2003)), report and recommendation adopted,
2023 WL 4711091 (N.D.N.Y. July 24, 2023). “Where a party has failed
to respond to the movant’s statement of material facts as required by
Local Rule 7.1(a)(3), the facts in the movant’s statement will be
accepted as true (1) to the extent they are supported by evidence in the
record, and (2) the non-movant, if proceeding pro se, has been
specifically advised of the possible consequences of failing to respond to
the motion.” Id. (citing Champion v. Artuz, 76 F.3d 483, 486 (2d Cir.
1996)).
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Accordingly, when a party moves for summary judgment against a
pro se litigant, either the movant or the district court must provide the
pro se litigant with notice of the consequences of failing to respond to
the motion. See Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620 (2d Cir.
1999). Courts in this district have routinely held that when such notice
is provided and a pro se plaintiff fails to respond to a motion for
summary judgment, the court may accept the defendant’s factual
assertions as true to the extent they are supported by the evidence in
the record. See, Jackson, 2023 WL 4710869 at *2; see also Price v.
Oropallo, 9:13-CV-563 (GTS/TWD), 2014 WL 4146276, at *5 (N.D.N.Y.
Aug. 2014) (“An unopposed summary judgment motion may properly be
granted only if the facts as to which there is no genuine dispute show
that the moving party is entitled to judgment as a matter of law.”)
(cleaned up).7
Burrell failed to comply with Local Rule 56.1(b). On May 6, 2025,
Defendants served Burrell with their motion for partial summary
7 In Burrell v. Global Tel Link, et al., No. 9:24-cv-1377 (BKS/TWD) (N.D.N.Y. Dec.
23, 2024), Chief United States District Judge Brenda K. Sannes revoked Burrell’s
special status as a pro se civil rights litigant.
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judgment and a Notification of Consequences of Failing to Respond to a
Summary Judgment Motion. (Dkt. 127). Although Burrell responded to
the motion, his response to Defendants’ SOMF is deficient because he
failed to comply with Local Rule 56.1(b) by not citing to the record to
support his denials of Defendants’ factual assertions. See (Dkt. 133); see
also Lee v. City of Troy, 520 F. Supp. 3d 191, 198 (N.D.N.Y. 2021)
(“Because a naked denial of a fact the movant claims to be undisputed
would do little to help the Court, the opposing party must support every
denial with a citation to record evidence supporting a genuine dispute of
material fact.”). The District Court should therefore deem admitted any
properly supported facts set forth in Defendants’ SOMF that Burrell did
not specifically controvert. See Local Rule 56.1(b).
B. Burrell failed to exhaust the available administrative
remedies.
The District Court should find that Burrell did not exhaust the
available administrative remedies. Incarcerated individuals must
exhaust the administrative remedies available to them before bringing
claims about prison life to Federal Court. Here, there is no objective
evidence that Burrell exhausted the administrative remedies available
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to him. So this Court recommends that the District Court grant
Defendants’ motion for partial summary judgment.
The Prison Litigation Reform Act (“PLRA”) governs federal civil
rights litigation by incarcerated individuals. Under the PLRA, “no
action shall be brought with respect to prison conditions under § 1983 of
this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a) (cleaned up). “The
PLRA’s exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular episodes.”
Porter v. Nussle, 534 U.S. 516, 532 (2002) (cleaned up). “Exhaustion is
mandatory—unexhausted claims may not be pursued in federal court.”
Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (citations omitted).
To exhaust administrative remedies, incarcerated individuals must
complete all the administrative review procedures according to the rules
applicable to the institution in which they are confined. See Jones v.
Bock, 549 U.S. 199, 218 (2007). “Untimely or otherwise procedurally
defective attempts to secure administrative remedies do not satisfy the
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PLRA’s exhaustion requirement.” Ruggiero v. County of Orange, 467
F.3d 170, 176 (2d Cir. 2006) (cleaned up).
The PLRA’s exhaustion requirement does not apply if the remedy
is functionally unavailable to the incarcerated individual. See Ross v.
Blake, 578 U.S. 632, 642 (2016). There are three “circumstances in
which an administrative remedy, although officially on the books, is not
capable of use to obtain relief.” Id. at 643.
First, “an administrative procedure is unavailable when (despite
what regulations or guidance materials may promise) it operates as a
simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates.” Id. (citation omitted).
Second, “an administrative scheme” is unavailable, when it is “so
opaque that it becomes, practically speaking, incapable of use.” Id. at
643-644. “When an administrative process is susceptible of multiple
reasonable interpretations” the incarcerated individual “should err on
the side of exhaustion.” Id. at 644. “But when a remedy is . . .
essentially ‘unknowable’ —so that no ordinary prisoner can make sense
of what it demands—then it is also unavailable.” Id. (citation omitted).
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Third, an administrative procedure is unavailable when “prison
administrators thwart” incarcerated persons “from taking advantage of
a grievance process through machination, misrepresentation, or
intimidation.” Id.
To begin, Defendants argue that Burrell did not exhaust the
administrative remedies available to him. Specifically, Defendants
contend that: (i) Burrell was housed at Upstate C.F. from April 12, 2022
to January 9, 2023, (ii) each of his claims are the proper subject of a
grievance, (iii) Upstate C.F. had a fully functioning grievance program
while Burrell was housed there, and (iv) a diligent search of DOCCS’
records showed that Burrell did not file any grievances related to the
legal claims he now brings. See (Debyah Decl., Dkt. 127-21, ¶¶ 12-20);
(Debyah Decl. Exh. B., Dkt. 127-21, pgs. 11-14).
In opposition, Burrell argues that he exhausted the available
administrative remedies by filing the following grievances:
• 	July 18, 2022 (UST-1156-22)(Retaliation/Req Removal
from RRU) (GUID);
• 	July 18, 2022 (UST-1157-22)(Racial Slur/Retaliation);
• 	December 5, 2022 (UST-2411-22)(Unable to Make Law Lib
Request);
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• 	November 15, 2022 (UST-2239-22)(Missing Paperwork from
Property);
• 	August 18, 2022 (UST-1496-22)(Sanctions Fabricated by
Security Staff/Hit Ordered by Superintendent); and
• 	September 22, 2022 (UST-1790-22)(Copies Not Timely)
(Burrell SOMF, Dkt. 133, pg. 15, at ¶ 137); (Debyah Decl. Exh. B.,
Dkt. 127-21, pgs. 11-14).
Burrell’s argument is unavailing. Although Exhibit “B” to Ms.
Debyah’s declaration establishes that Burrell did in fact file the above
grievances, they do not, by description, relate to any claims remaining
in this action. (Debyah Decl. Exh. B., Dkt. 127-21, pgs. 11-14). Fatal to
Burrell’s argument is that grievances UST-1156 and UST-1157 were
filed three days before the July 21, 2022 incident. So they cannot
support Burrell’s contention that he exhausted his administrative
remedies. Likewise, Grievances UST-2239 and UST-2411 were filed
late. So, even if they were relevant to the claims in this action, these
two grievances do not establish that Burrell exhausted the available
administrative remedies. See Ruggiero, 467 F.3d at 176 (2d Cir. 2006)
(“Untimely . . . attempts to secure administrative remedies do not
satisfy the PLRA’s exhaustion requirement.”) (cleaned up).
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Burrell also argues that Upstate C.F.’s grievance process was
unavailable to him and was a dead end. Specifically, Burrell claims that
the process is “flawed” because: (i) it takes “133 [days]” to receive an
answer to a grievance, (ii) “DOCCS has no IGRC lockbox in any
SHU/RRU as required by Directive 40408, rendering the grievance
policy unavailable,” and (iii) DOCCS staff intercepted the grievances
that he mailed out. See (Burrell SOMF, Dkt. 133, ¶¶ 93-94); see also
(Burrell Mem. of Law, Dkt. 133-1, at pgs. 11-12).9
Despite his assertions, Burrell cannot prove that Upstate C.F.’s
grievance process was unavailable to him. To start, Burrell concedes
that he bears the burden of proving that the grievance process is
unavailable. See (Burrell Mem. of Law, Dkt. 133-1, at pg. 9); see also
Jenkins v. Cordero, No. 17-CV-1592, 2019 WL 2121655 at *3 (S.D.N.Y.
May 15, 2019). However, Burrell fails to meet this burden. Using the
9 Directive 4040 does not require the presence of a lock box in RRU or SHU. While
Directive 4040 is silent as to incarcerated individuals in the RRU, it does address
those individuals in the SHU. Directive 4040, Section 701.7(b) (Procedures for
incarcerated individuals in Special Housing Unites (SHU’s)) states in relevant part
that, “Where available, SHU incarcerated individuals shall use centrally located
deposit boxes to send grievance forms and IGP correspondence to the IGP office …”
7 N.Y.C.R.R. § 701(b).
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date parameters set forth by the Debyah Declaration (which includes
the time within which to file a grievance and available extensions of
time to do so), Burrell filed 80 grievances while housed at Upstate C.F.
(Debyah Decl. Exh. B, Dkt. 127-21, pgs. 12-13). In fact, Burrell filed 15
grievances—between July 23, 2022 and August 13, 2022—while he was
in SHU/RRU. (Id. at pgs. 12-14). Of the total 324 grievance appeals
Burrell has filed with DOCCS, 122 of them were from Upstate C.F.
(Seguin Decl., Dkt. 127-20, at ¶15). The evidence of a functioning
grievance system at Upstate C.F. is overwhelming. See Lara v. Semrau,
No. 22-CV-517-JLS-LGF, 2024 WL 5484504, at *6 (W.D.N.Y. Oct. 8,
2024) (cleaned up) (“records as those provided by Krygier and Seguin
with personal knowledge of the inmate grievances and appeals filed
provided by persons with direct knowledge of the IGP at correctional
facilities have been found sufficient to support summary judgment
based on an inmate's failure to exhaust administrative remedies.”).
Frankly, the evidence belies Burrell’s argument that the grievance
process at Upstate C.F. was unavailable to him or a dead end. Burrell’s
prolific utilization of Upstate C.F.’s grievance process proves that the
grievance process was available to him. See Hall v. Annucci, No. 22-
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2031, 2023 WL 7212156, at *2 (2d Cir. Nov. 2, 2023) (summary order)
(finding that the District Court correctly determined that the grievance
process was available to the plaintiff because the plaintiff “previously
used the [grievance process] to file several grievances, including for
medical- and health-related issues, that resulted in relief.”).
While Burrell is allowed to plead in the alternative, he may not
plead alternative facts to support his inconsistent theories, which is
exactly what he is doing. “Although Rule 8(d)(3) allows parties to plead
alternative legal theories, it does not permit “inconsistent assertions of
facts within the allegations.” XL Specialty Ins. Co. v. Otto Naumann,
LTD., No. 12-CV-8224, 2015 WL 1499208, at *2 (S.D.N.Y. Mar. 31,
2015)) (citations omitted) (emphasis in original). Indeed, “there is a
significant difference between pleading alternative theories of law
based upon given facts and pleading alternative statements of fact to
support a given principle of law.” United States v. Gotti, 771 F.Supp.
535, 540 (E.D.N.Y.1991) (cleaned up). But here, Burrell ignores this
significant difference. On the one hand, Burrell argues that he filed
grievances UST-1156-22, UST-1157-22, UST-2411-22, UST-2239-22,
UST-1496-22, and UST-1790-22 thereby exhausting the administrative
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remedies available to him before commencing this action. (Burrell
SOMF, Dkt. 133, at ¶137). On the other hand, Burell argues that his
grievances were being intercepted. (Id. at ¶97). Burrell cannot have it
both ways. There is simply insufficient evidence for a reasonable jury to
find that Burrell has met his burden to prove that the grievance process
was unavailable to him when he alleges that he filed grievances
relevant to the claims in this action.
* * *
In sum, the Court recommends that the District Court find that
Burrell failed to exhaust his administrative remedies prior to
commencing this action. And because it is unequivocally evident that
Burrell did not exhaust the administrative remedies available to him,
the Court need not address Defendants’ remaining arguments in
support of their motion for partial summary judgment. See Johnson v.
New York City Dep’t of Corr., No. 13-CV-6799, 2014 WL 2800753, *6
(S.D.N.Y. June 16, 2014).
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23
V. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that Defendants’ motion for partial summary
judgment (Dkt. 127) be GRANTED IN ITS ENTIRETY, and it is
RECOMMENDED that (1) Burrell’s First Amendment retaliation
claims against Defendants Teneyck, Welch, Chase, Seymour, Smutz,
Bronson, Uhler, Tupper, Vesneske, Yando, Dumas, Burroughs, Demers
and Martin, and (2) Burrell’s Eighth Amendment excessive force and
failure to intervene claims against Welch, Seymour, Smutz, Vesneske,
Yando and Dumas be DISMISSED WITH PREJUDICE, and it is
RECOMMENDED, that the action be DISMISSED
WITHOUT PREJUDICE against Defendant Fleurny under
Fed. R. Civ. P. 4(m), and it is
ORDERED that the Clerk provide Burrell with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
days within which to file written objections to the foregoing report.
Such objections shall be filed with the Clerk of the Court.
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24
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec’y of
Health and Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam));
28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a).
Dated: February 17, 2026.
_____________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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United States District Court, N.D. New York.
Dumar JACKSON, Plaintiff,
v.
N. MOORE, Defendant.
9:21-CV-1001 (GTS/ATB)
|
Signed April 14, 2023
Attorneys and Law Firms
DUMAR JACKSON, Plaintiff, pro se.
RACHAEL S. OUIMET, Assistant Attorney General, for
Defendant.
REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 In this pro se civil rights action, plaintiff alleges
that the defendant violated his Eighth Amendment rights
when he failed to protect plaintiff from another inmate.
Presently before the court is defendant Correctional Officer
(“C.O.”) Moore's motion for summary judgment. (Dkt. No.
16). This matter has been referred to me for Report and
Recommendation by United States District Judge Glenn T.
Suddaby, pursuant to 28 U.S.C. § 636(b) and Local Rule
N.D.N.Y. 72.3(c). For the reasons set forth below, this court
will recommend granting defendant's motion and dismissing
the complaint in its entirety.
I. Background
A. Procedural History
In this civil rights action, plaintiff alleges a constitutional
violation occurred while he was incarcerated at Clinton
Correctional Facility (“Clinton C.F.”), in the custody
of the New York State Department of Corrections and
Community Supervision (“DOCCS”). Plaintiff filed the
original complaint on September 10, 2021. (Dkt. No. 1). On
October 25, 2021, the court issued a Decision and Order
granting plaintiff's application to proceed in the action in
forma pauperis (“IFP”), and conditionally dismissing the
original complaint because it failed to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915 and
28 U.S.C. § 1915A. (Dkt. No. 4). The court granted plaintiff
leave to amend his complaint to “correct[ ] the pleading
defects” identified with his original complaint. (Id. at 10).
Plaintiff availed himself of the opportunity to amend, and
the court received plaintiff's amended pleading on or about
November 18, 2021. (Dkt. No. 6, “Am. Compl.”).
On February 9, 2022, I determined, pursuant to my initial
review of the complaint, that plaintiff's amended complaint
was accepted for filing and that the only active defendant was
C.O. Moore. (Dkt. No. 7 at 3). C.O. Moore filed an answer
to the amended complaint on April 14, 2022. (Dkt. No. 12).
On December 15, 2022, defendant filed this instant motion
for summary judgment (Dkt. No. 16), to which plaintiff
responded on February 16, 2023 (Dkt. No. 20).
B. Summary of Complaint
The complaint alleges that on September 6, 2018, while
plaintiff was confined in Clinton C.F., he was attacked by
another inmate when they were released from their keep-
lock cells at the same time. (Am. Comp. at 4). Although
facility policies and procedures prohibited C.O. Moore from
releasing the other inmate “until [plaintiff] was ... back in
general population,” C.O. Moore nevertheless released both
inmates simultaneously, knowing that plaintiff did not have
an escort at the time. Id. C.O. Moore also “knew there was a
race war going on in [Clinton C.F.] with the bloods and the
Spanish gangs and let [plaintiff] out of [his] cell with a known
gang member posed [sic] a substantial risk of serious harm
to [him].” Id. Although C.O. Moore observed the inmate run
into plaintiff's cell and attack him, C.O. Moore “did nothing
to prevent it from happening.” Plaintiff was returned to keep-
lock after the incident and remained there for an additional 70
days, until November 15, 2018. (Dkt. No. 16-3, Pl.’s Dep. at
18, 27, 79, 88, 95; Internal Movement History, Dkt. No. 20-1
at 31).
II. Summary Judgment
*2 Summary judgment is appropriate where there exists no
genuine issue of material fact and, based on the undisputed
facts, the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263,
272-73 (2d Cir. 2006). Rule 56(b) provides that a party may
file a motion for summary judgment “at any time until 30
days after the close of all discovery.” Fed. R. Civ. P. 56(b).
Thus, a party may move for summary judgment in lieu of
an answer. See, e.g., Anderson v. Rochester-Genesee Reg'l
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Transp. Auth., 337 F.3d 201, 202 (2d Cir. 2003); Crenshaw
v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010); Riehl v.
Martin, No. 9:13-CV-439 (GLS/TWD), 2014 WL 1289601,
at *1-2 (N.D.N.Y. Mar. 31, 2014).
The moving party has the burden to show the absence of
disputed material facts by informing the court of portions
of pleadings, depositions, and affidavits which support the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party satisfies its burden, the nonmoving party
must move forward with specific facts showing that there is
a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at
273. In that context, the nonmoving party must do more than
“simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). However, in determining
whether there is a genuine issue of material fact, a court must
resolve all ambiguities, and draw all inferences, against the
movant. See United States v. Diebold, Inc., 369 U.S. 654,
655 (1962); Salahuddin, 467 F.3d at 272. “Only disputes over
[‘material’] facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986). It must be apparent that no rational finder of
fact could find in favor of the non-moving party for a court
to grant a motion for summary judgment. Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
While courts are required to give due deference to a plaintiff's
pro se status, that status “does not relieve plaintiff of his
duty to meet the requirements necessary to defeat a motion
for summary judgment.” Jorgensen v. Epic/Sony Records,
351 F.3d 46, 50 (2d Cir. 2003). Where a party has failed
to respond to the movant's statement of material facts as
required by Local Rule 7.1(a)(3), the facts in the movant's
statement will be accepted as true (1) to the extent they are
supported by evidence in the record, and (2) the non-movant,
if proceeding pro se, has been specifically advised of the
possible consequences of failing to respond to the motion.
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Although plaintiff received proper notice of his obligation
to respond to defendant's summary judgment motion in
accordance with Local Rules, the plaintiff did not file a
Statement of Material Facts that addressed many of the factual
allegations in defendant's Statement, as required by Local
Rule 7.1(a)(3). 1 Consequently, the court may accept the
properly supported facts contained in the defendants’ Rule
7.1 statement (Dkt. No. 16-2) as true for purposes of this
motion. See Govan v. Campbell, 289 F. Supp. 2d 289, 295-96
(N.D.N.Y. 2003).
1 Defense counsel specifically advised plaintiff of
the consequences of failing to respond to the
summary judgment motion. (Dkt. No. 16). Counsel
forwarded, to plaintiff, a copy of the court's form
Notification of the Consequences of Failing to
Respond to a Summary Judgment Motion, which
provided in pertinent part:
If you do not file a proper response to this
motion, the Court may grant the motion and
dismiss some or all of your claims. Under
Local Rules 7.1(b) and 56.1(b), to file a proper
response to this motion, you must submit the
following papers:
(1) A response to the defendants’ statement
of material facts that admits and/or denies
each of the defendants’ assertions in matching
numbered paragraphs, 1 and that supports
each denial with citations to record evidence.
* * *
WARNING: If you do not submit a proper
response to the defendants’ statement of material
facts, the Court may deem you to have admitted
the defendants’ factual statements.
(Dkt. No. 16 at 4).
III. Exhaustion of Administrative Remedies
A. Legal Standards
*3 The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C.
§ 1997e(a), requires an inmate to exhaust all available
administrative remedies prior to bringing a federal civil rights
action. The exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and regardless of the subject matter of
the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir.
2004), (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)),
abrogated on other grounds, Ross v. Blake, 578 U.S. 632
(2016). Inmates must exhaust their administrative remedies
even if they are seeking only money damages that are not
available in prison administrative proceedings. Id. at 675.
In order to properly exhaust an inmate's administrative
remedies, the inmate must complete the administrative review
process in accordance with the applicable state rules. Jones
v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford
v. Ngo, 548 U.S. 81 (2006)). In Woodford, the court
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held that “proper” exhaustion means that the inmate must
complete the administrative review process in accordance
with the applicable procedural rules, including deadlines, as
a prerequisite to bringing suit in federal court. Woodford, 548
U.S. at 90-103.
The grievance procedure in New York is a three-tiered
process. The inmate must first file a grievance with the
Incarcerated 2 Grievance Resolution Committee (“IGRC”).
N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and
(b). An adverse decision of the IGRC may be appealed to
the Superintendent of the Facility. Id. § 701.5(c). Adverse
decisions at the Superintendent's level may be appealed
to the Central Office Review Committee (“CORC”). Id. §
701.5(d). The court also notes that the regulations governing
the Incarcerated 3 Grievance Program (“IGP”) encourage
the inmate to “resolve his/her complaints through the
guidance and counseling unit, the program area directly
affected, or other existing channels (informal or formal)
prior to submitting a grievance.” Id. § 701.3(a) (Inmate's
Responsibility). There is also a special section for complaints
of harassment. Id. § 701.8. Complaints of harassment are
handled by an expedited procedure which provides that such
grievances are forwarded directly to the Superintendent of
the facility, after which the inmate must appeal any negative
determination to the CORC. Id. §§ 701.8(h) and (I), 701.5.
2 This committee was formerly known as the
“Inmate Grievance Resolution Committee,” but
has recently been renamed.
3 The program was formerly known as the “Inmate
Grievance Program,” but has recently been
renamed.
Prior to Ross v. Blake, supra, the Second Circuit utilized
a three-part inquiry to determine whether an inmate had
properly exhausted his administrative remedies. See Brownell
v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing
Hemphill v. State of New York, 380 F.3d 680, 686 (2d
Cir. 2004)). The Hemphill inquiry asked (1) whether the
administrative remedies were available to the inmate; (2)
whether defendants’ own actions inhibiting exhaustion estops
them from raising the defense; and (3) whether “special
circumstances” justify the inmate's failure to comply with the
exhaustion requirement. Id.
In Ross, the Supreme Court made it clear that courts
may not excuse a prisoner's failure to exhaust because of
“special circumstances.” Ross v. Blake, 578 U.S. 632, 640
(2016). “[M]andatory exhaustion statutes like the PLRA
establish mandatory exhaustion regimes, foreclosing judicial
discretion.” Riles v. Buchanan, 656 F. App'x 577, 580 (2d Cir.
2016) (quoting Ross, 578 U.S. at 639). Although Ross has
eliminated the “special circumstances” exception, the other
two factors in Hemphill – availability and estoppel – are still
valid. The court in Ross referred to “availability” as a “textual
exception” to mandatory exhaustion, and “estoppel” has
become one of the three factors in determining availability.
Ross, 578 U.S. at 642. Courts evaluating whether an inmate
has exhausted his or her administrative remedies must also
consider whether those remedies were “available” to the
inmate. Id.; see also Riles, 2016 WL 4572321 at *2.
B. Analysis
*4 Defendant C.O. Moore argues that plaintiff's failure-to-
protect claim is subject to dismissal, for failure to exhaust
administrative remedies, because plaintiff did not file an
initial grievance prior to bringing suit, nor did he appeal
the denial of any grievance concerning this claim to CORC.
(Dkt. No. 16-1, Defendant's Memorandum of Law at 14).
In support of his position, defendant has attached to his
motion papers the sworn declarations of Rachael Seguin
(“Seguin Decl.”) (Dkt. No. 16-7), the Director of the IGP
for DOCCS, and Christine Gregory, the IGP Supervisor
at Clinton C.F. (“Gregory Decl.”) (Dkt. No. 16-6). These
declarations, and the evidence attached as exhibits thereto,
indicate that plaintiff neither filed an initial grievance related
to his claim that C.O. Moore failed to protect him from
another inmate on September 6, 2018, nor did plaintiff submit
an appeal to CORC. (See Gregory Decl. ¶¶ 16-20; Seguin
Decl. ¶¶ 12-14, Ex. A).
In opposition to defendant's motion, plaintiff alleges that,
while confined in his keep-lock cell, he attempted to file a
grievance relating to the incident with C.O. Moore by putting
a sealed letter on the gate for mail pickup. (Dkt. No. 20 at 2-3;
Pl.’s Dep. at 87-89). Plaintiff testified that he remembered the
grievance being picked up by an unnamed officer, but does
not remember the exact day he mailed the grievance. 4 (Dkt.
No. 16-3, Pl.’s Dep. at 87-89, 93). Plaintiff speculates that an
unnamed officer on duty threw his grievance away. (Dkt. No.
20 at 2-3; Pl.’s Dep. at 87-89)
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4 Plaintiff testified that he filed the grievance “it was
in like the same – I want to say around like the 22 nd
or so.” (Pl.’s Dep. at 87-88).
Plaintiff acknowledged that he never followed up with respect
to his grievance for the 70 days after the incident when he was
confined on keeplock; but he alleges that he asked sergeants,
officers, and counselors about the status of his grievance and
they told plaintiff “they'll get back to you.” (Pl.’s Dep. at
93-94). Plaintiff admitted that he did not retain any copies
of the purported grievances relative to his complaints against
C.O. Moore. (Id. at 88). 5
5 Plaintiff alleges that he was told “it was a code
49 and that it had to go to the superintendent
office.” (Dkt. No. 20 at 3).
Plaintiff further testified that he not only understood the
grievance process, but also that he participated in an
orientation program at Clinton C.F. about how the grievance
process works at the facility. (Id. at 85-86). He admitted that
he filed “a couple” of grievances after the incident concerning
other matters, while still residing at Clinton C.F. (Id. at 90).
The record before this court clearly established that the
defendant did not exhaust administrative remedies with
respect to the failure-to-protect claim against C.O. Moore.
Given that an initial grievance was never filed, nor was the
claim ever appealed to CORC, the question becomes whether
plaintiff's failure to exhaust should be excused.
The defendant has satisfied his initial burden of
“establishing ... that a grievance process exist[ed] and
applie[d] to the underlying dispute.” Hubbs v. Suffolk
County Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015)
(citation omitted). 6 Thus, plaintiff assumes the burden
of producing evidence that one of the exceptions to the
administrative exhaustion requirement applies, excusing his
failure to exhaust and permitting his claim to survive
summary judgment. Id. (“If the defendants meet this
initial burden, administrative remedies may nonetheless be
deemed unavailable if the plaintiff can demonstrate that
other factors ... rendered a nominally available procedure
unavailable as a matter of fact.”) 7
6 IGP Supervisors Gregory and Seguin stated
Clinton C.F. had a fully functioning IGP program at
all times relevant to the complaint. (Gregory Decl.
¶ 16; Seguin Decl. ¶ 11). Plaintiff also testified that
he filed a grievance for an unrelated matter after the
incident and received an unfavorable decision and
appealed that decision. (Pl.’s Dep. 90-91).
7 I agree with Magistrate Judge Peebles’ cogent
analysis that, while the burden of production may
shift to a plaintiff with respect to certain aspects
of the exhaustion issue, “the ultimate burden
of proof with respect to the exhaustion defense
remains, at all times, with the defendant.” See,
e.g., Bailey v. Fortier, No. 9:09-CV-0742 (GLS/
DEP), 2012 WL 6935254, at *5-6 (N.D.N.Y. Oct. 4,
2012), report and recommendation adopted, 2013
WL 310306 (N.D.N.Y. Jan. 25, 2013); Nelson v.
Plumley, No. 9:12-CV-422 (TJM/DEP), 2015 WL
4326762, at *7-8 (N.D.N.Y. July 14, 2015), report
and recommendation adopted, 2013 WL 1305338
(N.D.N.Y. Mar. 18, 2013).
*5 Liberally construed, plaintiff appears to argue that
administrative remedies were unavailable to him as a result of
C.O. Moore trying “to cover his mistakes up”. (Dkt. No. 20
at 2-3). Plaintiff does not offer any support for his claim other
than his statement “officers talk like inmates talk. So knowing
the incident, knowing I put in a grievance, they wanted to be
nosey [sic], and they opened it and never let it get to where
it was supposed to go once it was read.” (Pl.’s Dep. at 89).
During his deposition, plaintiff specifically stated that C.O.
Moore was not the person who picked up the grievance. (Pl.’s
Dep. at 88-89). Furthermore, plaintiff testified the alleged
grievance was sealed, so the unnamed C.O. would have no
way of knowing what conduct the grievance was referring to
unless (s)he opened the envelope. (Pl.’s Dep. at 92).
As noted above, plaintiff was on keep-lock status when he
allegedly attempted to submit a grievance relating to the
claim in this action by leaving a sealed envelope for C.O.s
to deliver. “Keeplock is a form of disciplinary confinement
segregating an inmate from other inmates and depriving him
of participation in normal prison activities.” Green v. Bauvi,
46 F.3d 189, 192 (2d Cir. 1995); N.Y. Comp. Codes R.
& Regs. tit. 7, § 301.6. While “[k]eep-lock is similar to
serving time in a Special Housing Unit ... [with the inmate]
remain[ing] in their assigned cell” (Dkt. No. 16-5, Terry Allen
Declaration ¶ 7), plaintiff acknowledged that keep-lock status
is “not like if you were in the SHU” (Pl.’s Dep. at 35).
In Williams v. Priatno, 829 F.3d 118, 123-27 (2d Cir.
2016), the Second Circuit considered whether administrative
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remedies had been “actually available” to an inmate plaintiff
under Ross, after the district court granted the defendants’
motion to dismiss for failure to exhaust. The plaintiff alleged
that, while housed in a SHU, he drafted a grievance that he
delivered to a correction officer to forward to the grievance
office on his behalf. Id. at 120-121. Approximately two weeks
later, the plaintiff was transferred to a different facility. Id.
at 121. He never received a response to his grievance, and
alleged that it was never filed by the officer to whom he had
given it. It was undisputed that plaintiff never appealed the
grievance. Id.
The defendants in Williams argued that even if the grievance
was never filed, the plaintiff was required to appeal it and
complete the grievance process. Id. at 124. The defendants
relied on a DOCCS regulation that provided that “an inmate
may appeal a grievance ‘to the next step’ if he does not
receive a timely response.” Id. (quoting N.Y. Comp. Codes
R. & Regs. tit. 7, § 701.6(g)(2)). The Second Circuit rejected
this argument and held that, for an inmate in the plaintiff's
situation, the regulatory scheme was so “opaque” and
“confusing” as to be practically unavailable. Id. The Second
Circuit found that DOCCS regulations “only contemplate
appeals of grievances that [have been] actually filed ... [and]
give no guidance whatsoever to an inmate whose grievance
was never filed.” Id. Thus, Williams holds that “the process to
appeal an unfiled and unanswered grievance is prohibitively
opaque, such that no inmate could actually make use of it.”
Id. at 126. 8 See also Medina v. Napoli, 725 F. App'x 51,
53-54 (2d Cir. 2018) (following Williams in the context of a
summary judgment motion).
8 My summary of Williams tracks that of Magistrate
Judge Stewart in Berman v. Durkin, No. 9:13-
CV-136 (LEK/DJS), 2017 WL 1215814, at
*8 (N.D.N.Y. Mar. 10, 2017), report and
recommendation adopted, 2017 WL 1207834
(N.D.N.Y. Mar. 31, 2017).
Some district court cases in the Second Circuit suggest that
Williams should be limited to its particular facts, e.g., by
not applying its holding to plaintiffs who are not confined
in a SHU. 9 See, e.g., Shaw v. Ortiz, No. 15-CV-8964, 2016
WL 7410722, at *6 (S.D.N.Y. Dec. 21, 2016) (“the factual
scenario here is different from that in Williams where the
Second Circuit found that part of the IGP's regulatory scheme
was ‘so opaque and so confusing that ... no reasonable
prisoner c[ould] use’ it.”) (citing Mena v. City of New
York, No. 13-CV-2430, 2016 WL 3948100, at *5 (S.D.N.Y.
July 19, 2016) (finding that the Second Circuit's decision
in Williams “hinged on the ‘extraordinary circumstances’
specific to the case before it”)); Blake v. Porlier, No. 9:18-
CV-1008 (DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y.
Oct. 4, 2019) (“Courts have taken an inmate's housing and
level of segregation from the general population into account
when determining the availability of grievance procedures.”)
(citing Rodriguez v. Cross, No. 15-CV-1079 (GTS/CFH),
2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (holding
that a plaintiff in keeplock was not entitled to an exhaustion
exception when he alleged that his grievance had not been
filed due to mail tampering, and subsequently never inquired
about it), report and recommendation adopted, 2017 WL
2790530 (N.D.N.Y. June 27, 2017)).
9 In Medina v. Napoli, 725 F. App'x at 53-54,
the Second Circuit followed Williams in a case
involving a SHU inmate, but absent the additional
circumstance of a transfer to a different facility,
which might have further complicated the inmate's
ability to file a grievance.
*6 In any event, unsupported assertions that a plaintiff
“filed a grievance but that it was somehow lost or destroyed”
have generally been found “insufficient to establish a genuine
issue of fact.” Blake v. Porlier, 2019 WL 7484052, at *5
(“Courts within the Second Circuit have continuously held
that ‘mere contentions or speculation of grievances being
misplaced by officers do not create a genuine issue of material
fact when there is no evidence to support the allegations.’
”) (quoting Rodriguez v. Cross, 2017 WL 2791063, at *5);
Artis v. Dishaw, No. 9:14-CV-1116 (MAD/ATB), 2016 WL
11266599, at *7 n.13 (N.D.N.Y. Sept. 12, 2016) (finding
the plaintiff's failure to exhaust was not excusable, in part,
because while the plaintiff “state[d] that some grievances
were destroyed ... he ha[d] not submitted any copies of
these grievances, nor d[id] he specify when he attempted
to file them”), report and recommendation adopted, 2017
WL 1076343 (N.D.N.Y. Mar. 22, 2017); Engles v. Jones,
No. 6:13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y.
Dec. 28, 2018) (“Plaintiff's unsupported assertion that he filed
a grievance but that it was somehow lost or destroyed is
insufficient to establish a genuine issue of material fact.”)
(citing Scott v. Kastner-Smith, 298 F. Supp. 3d 545, 555
(W.D.N.Y. 2018)).
Moreover, courts in this Circuit have granted summary
judgment for failure to exhaust administrative remedies, even
for a prisoner confined to a SHU whose ability to directly file
a grievance or make a copy may be limited, when the plaintiff
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provided no documentation or minimal corroborative details.
See, e.g., Sankara v. Montgomery, No. 9:16-CV-00885 (FJS/
TWD), 2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018)
(“Plaintiff's conclusory allegations that the DOCCS IGP
was unavailable to him [while confined to the SHU] were
insufficient to withstand summary judgment,” where the
plaintiff “provided no evidence that he actually did write
grievances; when they were written; the content of the
grievances ... the officers named in the grievance(s) ...; the
specific steps taken by Plaintiff to provide them to an officer
to send to the grievance office; and any specific follow up
with the grievance office[.]”), report and recommendation
adopted, 2018 WL 3408135 (N.D.N.Y. July 13, 2018);
Simpson v. Price, No. 9:19-CV-1413 (MAD/ATB), 2021 WL
7367083, at *9 (N.D.N.Y. Dec. 29, 2021) (in the absence of
any documentary evidence to corroborate plaintiff's alleged
attempt to file a grievance from the SHU, the court concludes
that plaintiff's completely unsupported, unclear, and vague
implication that the grievance was not properly processed
does not suffice to avoid summary judgment), report and
recommendation adopted, 2022 WL 336540 (N.D.N.Y. Feb.
4, 2022); Ozzborn v. Cornell, No. 9:17-CV-1039 (MAD/
ATB), 2021 WL 2227829, at *5 (N.D.N.Y. June 2, 2021)
(Plaintiff claimed that he filed a grievance from the SHU
by leaving a plain envelope addressed to the grievance
committee for the mail personnel to collect; but, because he
never received a response, he presumed that the grievance was
never submitted. Because plaintiff never followed up on his
grievance and successfully filed numerous other grievances
in the recent past, he has failed to demonstrate that his
administrative remedies were unavailable to him). 10
10 District Judge D'Agostino distinguished Williams
v. Priatno by noting the various ways in which the
plaintiff in Williams specified how he followed up
with respect to the grievance that he left for delivery
from the SHU, which was never filed with the IGP.
Id. at *4.
Here, the court does not merely rely on plaintiff's lack of direct
evidence, such as copies of the relevant grievances, in finding
that he has failed to establish a genuine issue of material fact
as to unavailability. Plaintiff in this case has done nothing
more than allege in conclusory fashion that he attempted to
file a grievance concerning a the September 6, 2018 incident.
Plaintiff's testimony about when he attempted to submit the
grievance was vague and he did not identify the officer who
allegedly collected it. Likewise, he has not supported his
claim that unnamed sergeants, officers, and counselors told
him “not to worry” with any documentary evidence. See, e.g.,
Belile v. Griffin, No. 9:11-CV-0092 (TJM/DEP), 2013 WL
1776086, at *8 (N.D.N.Y. Feb. 12, 2013) (“Plaintiff's mere
threadbare allegations that his grievances were intercepted
and discarded, without evidence to support such allegation,
including any evidence that identifies which defendant, in
particular, is responsible for discarding the grievances, are
insufficient to excuse his failure to comply with the IGP
[process]”), report and recommendation adopted, 2013 WL
1291720 (N.D.N.Y. Mar. 27, 2013).
*7 For the above reasons, the court concludes that plaintiff's
completely unsupported and vague claim that a grievance
he attempted to file against C.O. Moore relative to the
September 6, 2018 incident was not properly processed does
not suffice to avoid summary judgment. Accordingly, the
court recommends that C.O. Moore be granted summary
judgment and the second amended complaint be dismissed
against him, on the ground that plaintiff failed to exhaust his
administrative remedies.
Dismissal with prejudice is appropriate where the plaintiff had
the opportunity to exhaust administrative remedies, failed to
do so, and is unable to cure his failure to exhaust. Berry v.
Kerik, 366 F.3d 85, 87 (2d Cir. 2004). Here, plaintiff's time
to file the relevant grievance to CORC in accordance with
the rules and regulations has already passed, 11 rendering his
failure to exhaust his administrative remedies incurable at this
time. As a result, I recommend that plaintiff's complaint be
dismissed with prejudice as to these claims. See Livingston v.
Hoffnagle, No. 17-CV-1158 (MAD/DEP), 2019 WL 409366,
at *7 (N.D.N.Y. Feb. 1, 2019) (dismissing without leave to
amend, where the exhaustion error would not be cured by
permitting the plaintiff leave to amend).
11 “Ordinarily, an inmate must first submit ‘a
complaint,’ or grievance, to the facility's IGP clerk
within twenty-one days of the alleged occurrence
giving rise to his complaint. 7 N.Y.C.R.R. §
701.5(a). Relief from the twenty-one day time limit
may be granted by the IGP supervisor based upon
mitigating circumstances, provided, however, that
‘[a]n exception to the time limit may not be granted
if the request was made more than 45 days after an
alleged occurrence.’ ” Nelson v. Plumley, 2015 WL
4326762, at *2 (citing N.Y.C.R.R. § 701.6(g)(1)(i)
(a)).
IV. Eighth Amendment Failure to Protect Claim
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Jackson v. Moore, Not Reported in Fed. Supp. (2023)
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Defendant also seeks summary judgment on the merits of
plaintiff's failure to protect claim, arguing, among other
things, that plaintiff has failed to establish C.O. Moore
was acting with deliberate indifference to conditions that
posed a substantial risk of serious harm to plaintiff. For the
following reasons, the court agrees that summary judgment is
warranted, in the alternative, on the merits of plaintiff's Eighth
Amendment claim.
A. Legal Standards
In order to state an Eighth Amendment claim for failure
to protect an inmate, the plaintiff must show that he was
incarcerated under conditions posing a substantial risk of
serious harm, and prison officials acted with deliberate
indifference to that risk and the inmate's safety. Farmer v.
Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970 (1994). The
plaintiff must show that prison officials actually knew of and
disregarded an excessive risk of harm to the inmate's health
and safety. Id. at 837, 114 S. Ct. 1970. The defendant must be
aware of the facts from which the inference can be drawn that
a substantial risk of serious harm exists, and the defendant
must also draw that inference. Id.
The failure of corrections officers to employ reasonable
measures to protect an inmate from violence by other inmates
may rise to the level of an Eighth Amendment violation. See
Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985) (citing
United States v. Bailey, 444 U.S. 394, 423 (1980)). “Reckless
disregard” of plaintiff's right to be free from attacks by other
inmates may be shown by the existence of a “pervasive risk of
harm to inmates from other prisoners and a failure by prison
officials to reasonably respond to that risk.” Knowles v. New
York City Dep't of Corr., 904 F. Supp. 217, 221-22 (S.D.N.Y.
1995) (citing Rucco v. Howard, No. 91 Civ. 6762, 1993 WL
299296, at *4 (S.D.N.Y. Aug. 4, 1993); Martin v. White, 742
F.2d 469, 474 (8th Cir. 1984)).
*8 An isolated omission by corrections officers generally
does not support a claim for deliberate indifference
absent circumstances involving evil intent, recklessness, or
deliberate indifference. Coronado v. Goord, No. 99 Civ.
1674, 2000 WL 1372834, at *4 (S.D.N.Y. Sept. 25, 2000)
(citing Ayers v. Coughlin, 780 F.2d at 209). Plaintiff may
allege a constitutional claim by alleging that the substantial
risk of inmate attacks was longstanding, pervasive, well-
documented, or expressly noted by prison officials in the past,
and that the officials being sued were exposed to information
concerning the risk and thus, must have known about it. Id.
(citing Farmer, 511 U.S. at 842-43).
B. Analysis
With due regard for plaintiff's status as a pro se litigant,
plaintiff has failed to establish that C.O. Moore knew of a
particular risk to plaintiff's safety or that C.O. Moore was
deliberately indifferent for failing to protect plaintiff. Plaintiff
merely offers conclusory, general allegations that C.O. Moore
knew about an alleged gang and/or race war happening at
Clinton C.F. (Dkt. No. 20 at 2). However, C.O. Moore has, in
his sworn declaration, denied having any knowledge about a
race war at Clinton C.F. or having any access to information
regarding an inmate's gang status. (Moore Decl. ¶¶ 21, 23).
Even if C.O. Moore did have access to such records, plaintiff
testified that he is not a member of a gang. (Jackson Dep. at
19). Thus, there is nothing in the record other than plaintiff's
conclusory allegations establishing that C.O. Moore knew
plaintiff was at a substantial risk of harm because of an alleged
gang war.
Plaintiff's claim is further undermined by his sworn testimony
admitting that he had not had any prior interactions with
the inmate who attacked him before the underlying incident.
(Jackson Dep. at 19-20); Gillard v. Jarvis, No. 9:11-CV-1021
(LEK/ATB), 2012 WL 7037734, at *7 (N.D.N.Y. Nov.
6, 2012), report and recommendation adopted, 2013 WL
474384 (N.D.N.Y. Feb. 7, 2013) (“If plaintiff did not know the
inmate who assaulted him, he cannot claim that defendants
“knew” and disregarded the serious risk that plaintiff would
be assaulted at Clinton by this unknown individual.”).
Plaintiff has not alleged that he was threatened by the other
inmate, or any member of the other inmate's race or gang,
prior to this incident. Additionally, neither inmate was in
protective custody when they were released form their cells.
(Moore Decl. ¶ 14). Plaintiff also testified he never asked for
protective custody before or after the incident. (Jackson Dep.
at 73).
“Courts routinely deny deliberate indifference claims based
upon surprise attacks.” Zimmerman v. Macomber, No. 95 Civ.
0882, 2001 WL 946383, at *5 (S.D.N.Y. Aug. 21, 2001)
(granting summary judgment in favor of the defendants where
the plaintiff failed to carry his burden to establish that the
defendant had knowledge of a substantial risk to plaintiff's
health or safety from an inmate attacker). Here, plaintiff
has failed to allege defendants knew of a prior altercation
between the plaintiff and his attacker, or of any threats that
had been made against the plaintiff. Fernandez v. N.Y.C.
Dep't of Corr., No. 08 Civ. 4294, 2010 WL 1222017, at *4
(S.D.N.Y. Mar. 29, 2010); Clark v. Gardner, 256 F. Supp.3d
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Jackson v. Moore, Not Reported in Fed. Supp. (2023)
2023 WL 4710869
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 8
154, 168 (N.D.N.Y. 2017). Because plaintiff has alleged no
facts suggesting that C.O. Moore knew of a particular risk to
the plaintiff's safety, he has failed to raise a material question
of fact as to whether C.O. Moore was deliberately indifferent,
and summary judgment is warranted. Parris v. New York State
Dep't Corr. Servs., 947 F. Supp.2d 354, 363 (S.D.N.Y. 2013).
*9 WHEREFORE, based on the findings above, it is
RECOMMENDED, that Defendant's motion for summary
judgment (Dkt. No. 16) be GRANTED, and the complaint be
DISMISSED WITH PREJUDICE.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2023 WL 4710869
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 32 of 75

Jackson v. Moore
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:21-CV-01001
Jackson v. New York State Department of Corrections et
al
— N.D.N.Y. Sep. 10, 2021 Docket
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 33 of 75

Jackson v. Moore
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (2)
1. Jackson v. Moore
2023 WL 4710869 , N.D.N.Y. , Apr. 14, 2023
Report and Recommendation Adopted by
2. Jackson v. Moore
2023 WL 4711091 , N.D.N.Y. , July 24, 2023
Related References (1)
3. Jackson v. Moore
2022 WL 22888891 , N.D.N.Y. , Feb. 09, 2022
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 34 of 75

Jackson v. Moore, Not Reported in Fed. Supp. (2023)
2023 WL 4711091
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4711091
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Dumar JACKSON, Plaintiff,
v.
Officer MOORE, Corr. Fac. Ofcr.,
Clinton Corr. Fac., Defendant.
9:21-CV-1001 (GTS/ATB)
|
Signed July 24, 2023
Attorneys and Law Firms
DUMAR JACKSON, 18-A-2746, Plaintiff, Pro Se, Five
Points Correctional Facility, Caller Box 19, Romulus, New
York 14541.
HON. LETITIA A. JAMES, Attorney General for the State
of New York, RACHEL OUIMET, ESQ., Assistant U.S.
Attorney, Counsel for Defendant, The Capitol, Albany, New
York 12224.
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 Currently before the Court, in this pro se prisoner
civil rights action filed by Dumar Jackson (“Plaintiff”)
against Correctional Officer Moore (“Defendant”), are (1)
Defendant's motion for summary judgment, (2) United
States Magistrate Judge Andrew T. Baxter's Report-
Recommendation recommending that Defendant's motion
be granted and Plaintiff's Complaint be dismissed, and (3)
Plaintiff's Objection to the Report-Recommendation. (Dkt.
Nos. 16, 21, 22.) Because Plaintiff's one-page (four-sentence)
Objection fails to specifically challenge any portion of the
Report-Recommendation, the Court need review that Report-
Recommendation for only clear error. 1 After carefully
reviewing the relevant filings in this action, the Court can find
no clear error in the Report-Recommendation: Magistrate
Judge Baxter employed the proper standards, accurately
recited the facts, and reasonably applied the law to those
facts. As a result, the Court accepts and adopts the Report-
Recommendation for the reasons stated therein, and Plaintiff's
Complaint is dismissed with prejudice.
1 When only a general objection is made to a portion
of a magistrate judge's report-recommendation,
the Court subjects that portion of the report-
recommendation to only a clear error review.
Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition;
see also Brown v. Peters, 95-CV-1641, 1997
WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997)
(Pooler, J.) [collecting cases], aff'd without opinion,
175 F.3d 1007 (2d Cir. 1999). Similarly, when
no objection is made to a portion of a report-
recommendation, the Court subjects that portion of
the report-recommendation to only a clear error
review. Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition. When performing such a
“clear error” review, “the court need only satisfy
itself that there is no clear error on the face of the
record in order to accept the recommendation.” Id.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter's Report-
Recommendation (Dkt. No. 21) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendant's motion for summary judgment
(Dkt. No. 16) is GRANTED in its entirety; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED with prejudice.
All Citations
Not Reported in Fed. Supp., 2023 WL 4711091
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 35 of 75

Jackson v. Moore
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:21-CV-01001
Jackson v. New York State Department of Corrections et
al
— N.D.N.Y. Sep. 10, 2021 Docket
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 36 of 75

Jackson v. Moore
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (2)
1. Jackson v. Moore
2023 WL 4710869 , N.D.N.Y. , Apr. 14, 2023
Report and Recommendation Adopted by
2. Jackson v. Moore
2023 WL 4711091 , N.D.N.Y. , July 24, 2023
Related References (1)
3. Jackson v. Moore
2022 WL 22888891 , N.D.N.Y. , Feb. 09, 2022
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 37 of 75

Jackson v. Moore
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 38 of 75

Price v. Oropallo, Not Reported in F.Supp.3d (2014)
2014 WL 4146276
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Sheffer v. Fleury, N.D.N.Y., September 18, 2019
2014 WL 4146276
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Chris PRICE, Plaintiff,
v.
J. OROPALLO, Sergeant, Upstate Corr. Facility;
Norman H. Bezio, Dir. of Shu, Inmate Disciplinary
Program, Nys Docs; and Phillip Battiste, Dir.
of Security Staff, Nys Docs, Defendants.
No. 9:13–CV–0563 (GTS/TWD).
|
Signed Aug. 19, 2014.
Attorneys and Law Firms
Chris Price, Auburn, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of
New York, Keith J. Starlin, Esq., Assistant Attorney General,
of Counsel, Albany, NY, for Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this pro se prisoner civil
rights action filed by Chris Price (“Plaintiff”) against the three
above-captioned New York State correctional employees
(“Defendants”), are Defendants' motion for summary
judgment, and United States Magistrate Judge Therese
Wiley Dancks' Report–Recommendation recommending that
Defendants' motion be granted. (Dkt.Nos.25, 28.) Plaintiff has
not filed an Objection to the ReportRecommendation, and
the deadline by which to do so has expired. (See generally
Docket Sheet.) After carefully reviewing the relevant filings
in this action, the Court can find no clear error in the Report–
Recommendation: Magistrate Judge Dancks employed the
proper standards, accurately recited the facts, and reasonably
applied the law to those facts. (Dkt. No. 28.) To that analysis,
the Court would add only two points.
First, with regard to Plaintiff's claims against Defendants
Battiste and Bezio, the Court notes that the verified Complaint
does not allege facts plausibly suggesting, or adduce
admissible evidence establishing, that Plaintiff sent letters to
Battiste or Bezio at an appropriate address and by appropriate
means. (Dkt. No. 1, at ¶ 6.) In any event, even if he had
done so, the Complaint alleges facts plausibly suggesting, or
adduces admissible evidence establishing, that a response by
officials at his correctional facility followed the sending of
the letters. (Id.)
Second, as an alternative ground for the dismissal of the
Complaint, the Court accepts Defendants' failure-to-exhaust
argument because, even assuming Plaintiff was in fact told
that his complaint was not grievable, he filed the grievance
and knew he was “suppose[d] to ... receive[ ]” a response to it.
(Dkt. No. 1, at 4.) More important, he could have, and should
have, filed an appeal from his non-response (which he did not
do). 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within
the time limits may be appealed to the next step.”); see also
Smith v. Kelly, 985 F.Supp.2d 275, 281–82 (N.D.N.Y.2013)
(collecting cases). Such an appeal could have proved fruitful,
given that the issue was indeed grievable. (Dkt. No. 25,
Attach. 5. at ¶ 3 [Hale Decl.].)
For all of these reasons, Defendants' motion is granted, and
Plaintiff's Complaint is dismissed.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks' Report–
Recommendation (Dkt. No. 28) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 25) is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED in its entirety.
ORDER and REPORT–RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge.
Pro se Plaintiff Chris Price, an inmate currently confined
in the Auburn Correctional Facility, has commenced this
action pursuant to 42 U.S.C. § 1983 alleging Defendants
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Price v. Oropallo, Not Reported in F.Supp.3d (2014)
2014 WL 4146276
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
failed to protect him in violation of his Eighth Amendment
rights by placing a member of a rival gang in his cell. (Dkt.
No. 1.) Plaintiff has sued Corrections Sergeant Jon Oropallo
(“Oropallo”); Phillip Battiste (“Battiste”), New York State
Department of Corrections and Community Supervision
(“DOCCS”) Director of Security Staff; and Norman R.
Bezio (“Bezio”), DOCCS Director of Special Housing/
Inmate Disciplinary Program Id. at 1.
*2 Defendants filed an Answer to Plaintiff's Complaint (Dkt.
No. 12) and have now moved for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No.
25.) Plaintiff has not opposed the motion or sought additional
time within which to do so. For the reasons set forth below,
the Court recommends that Defendants' motion for summary
judgment be granted.
I. BACKGROUND
While Plaintiff was confined at the Upstate Correctional
Facility (“Upstate”), his membership in the Crips gang was
known to prison officials. (Dkt. No. 1 at ¶ 7.) Plaintiff
expressed concerns for his safety to officials at Upstate,
at least in part because according to Plaintiff, Defendant
Oropallo had previously forced him to fight with members of
the Bloods, a rival gang. Id. at 6. In a Declaration submitted
in support of Defendants' motion for summary judgment,
Oropallo denies ever having forced Plaintiff to fight with
another inmate. (Dkt. No. 25–4 at ¶ 4.)
The evidence shows that Oropallo did issue a misbehavior
report on Plaintiff on December 8, 2011, after observing
Plaintiff and his cell mate Williams fighting. (Dkt. No. 25–4
at ¶ 8 and p. 23.) 1 The fight investigation form reveals that
Plaintiff did not want protection and neither he nor Williams
wanted to press charges in connection with the fight. Id.
at p. 24. Donald Uhler (“Uhler”), Deputy Superintendent
of Security at Upstate, reviewed Plaintiff's security file and
found no request by him for protective custody. (Dkt. No. 25–
3 at ¶ 10.)
1 Page numbers cited herein are those assigned by the
Case Management/Electronic Case File (CM/ECF)
system.
Plaintiff claims that as a result of being forced to fight
members of the Bloods gang, he filed a grievance and began
speaking with officials at Upstate regarding his safety in the
fall of 2011. (Dkt. No. 1 at ¶ 6.) Plaintiff's file from Upstate
contains a December 12, 2011, “To Whom it May Concern”
letter in which Plaintiff disclosed that he had been forced to
fight on December 8, 2011, and had been threatened with a
scalpel by members of the Bloods. (Dkt. No. 25–3 at ¶ 4 and
p. 6.) In his December 12, 2011, letter Plaintiff indicated that
he was writing to create a paper trail regarding safety issues
he had raised with corrections officers and sergeants. (Dkt.
No. 25–3 at p. 6.) Plaintiff wrote:
I used to be a well known crip gang
member. The bloods still label me
as being a crip gang member. So to
back myself up, I'm [writing] to all
people that I think should be notified
of my situation of safety. On the 8th of
this month for this particular reasons
I stated above, I was [threatened] and
forced to fight. I fear for my life while
I'm here [incarcerated]. I just wanna
do the time that I have and hopeful[ly]
get a reversal on my appeals. Are
there any ways that, I can be bunked
up with someone who isn't labeled a
bloods gang member, because I was
threatened with a scalpel. I notified the
proper personnel and I wasn't taken
serious [ly] until I started kicking the
cell door I was in, I was taken out to
be forced to fight in another cell. I fear
I'm a get hurt or I'm a hurt someone.
Can you help me? Thank you for your
time and [patience].
*3 Id.
According to Uhler, Lt. Lumbard (“Lumbard”) investigated
the letter on December 21, 2011. Id. at ¶ 5. Lumbard reported
that Plaintiff told him that he was a member of the Crips gang
and had been having trouble with members of the Bloods
gang. Id. at p. 5. When asked about being threatened with
a scalpel, Plaintiff refused to provide any information. Id.
Plaintiff did tell Lumbard that he was getting along well with
his current cell mate, and that they had no issues. Id. Lumbard
indicated that the cell block staff had been notified about the
situation and advised to leave Plaintiff with his cell mate and,
if possible, to move the cell mate with him when he was
moved upstairs. Id.
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Price v. Oropallo, Not Reported in F.Supp.3d (2014)
2014 WL 4146276
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Plaintiff was dissatisfied with the resolution of his grievance
and claims to have written to Defendants Battiste and Bezio
about his safety concerns. Id. Plaintiff was subsequently
told by Upstate officials that the safety issues of which he
had complained would be handled, and he would not have
to worry about being placed in the same cell with known
members of the Bloods. Id. Nonetheless, on August 9, 2012,
inmate Adams, a member of the Bloods, was brought in to
bunk with Plaintiff. (Dkt. No. 1 at ¶ 6 .) Plaintiff and Adams
got into what both described as a gang related fight in the cell
within minutes after the officer placing Adams in the cell left,
and Plaintiff sustained a non-displaced fracture of his nose
and a laceration on his nose which required stitches. Id .; Dkt.
Nos. 25–3 at 12; 25–4 at 8–9; 26 at 8–12.
Prior to Adams being placed in the cell with Plaintiff,
Oropallo had no personal knowledge or information that
would have led him to believe that Adams was gang related or
would pose a threat to Plaintiff. (Dkt. No. 25–4 at ¶ 7.) Adams
had never told Oropallo he was in a gang, and nothing about
the December 8, 2011, fight between Plaintiff and Williams
led Oropallo to believe Adams would be a threat to Plaintiff.
Id. at ¶ 10. Furthermore, the assignment of inmates for double
cell housing was not within the scope of Oropallo's authority.
Id. at ¶ 9.
DOCCS maintains an “enemies” list for inmates based upon
information provided by the inmate and from his disciplinary
record. Id. at ¶ 6. Uhler has explained in his Declaration
that DOCCS does not recognize street gangs, and inmates
frequently do not disclose gang affiliations to prison officials,
although if there is information of gang affiliation, a notation
might appear on the inmate's personal characteristics screen,
his security file, or be made by a counselor during intake. Id.
at ¶ 7. Uhler reviewed the DOCCS files on Adams and found
no notations indicating that he was gang affiliated. Id. at ¶
8; see also Adams' Personal Characteristics Form and Inmate
Security Classification Form, neither of which identifies him
as a member of the Bloods gang. Id. at pp. 9–10.
A misbehavior report was filed against Plaintiff as a result
of the August 9, 2012, fight. (Dkt. No. 25–4 at 8.) Plaintiff
was found guilty of violent conduct and assault and was given
four months in the Special Housing Unit, loss of packages,
commissary, ear phones, recreation, and good time, with two
months suspended as an incentive for Plaintiff to improve his
behavior. Id. at 5–6.
II. APPLICABLE LEGAL STANDARDS
A. General Legal Standards for Summary Judgment
Motions
*4 Summary judgment may be granted only if the
submissions of the parties taken together “show that there
is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251–52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party
moving for summary judgment bears the initial burden of
showing, through the production of admissible evidence,
that no genuine issue of material fact exists. Salahuddin v.
Goord, 467 F.3d 263, 272–73 (2d Cir.2006). A dispute of
fact is “genuine” if “the [record] evidence is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248.
Only after the moving party has met this burden is the
nonmoving party required to produce evidence demonstrating
that genuine issues of material fact exist. Salahuddin, 467
F.3d at 272–73. The nonmoving party must do more than
“rest upon the mere allegations ... of the [plaintiff's] pleading”
or “simply show that there is some metaphysical doubt as
to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 585–86, 106 S.Ct. 1348, 89
L.Ed.2d 538 (1986). “Conclusory allegations, conjecture and
speculation ... are insufficient to create a genuine issue of fact.
Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998).
A party opposing summary judgment is required to submit
admissible evidence. See Spiegel v. Schulmann, 604 F.3d 72,
81 (2d Cir.2010) (“It is well established that in determining
the appropriateness of a grant of summary judgment, [the
court] ... may rely only on admissible evidence.”) (citation
and internal quotation marks omitted). A plaintiff's verified
complaint is to be treated as an affidavit. 2 Colon v. Coughlin,
58 F.3d 865, 872 (2d Cir.1995) (“A verified complaint is to
be treated as an affidavit ... and therefore will be considered
in determining whether material issues of fact exist ....”)
(citations omitted).
2 Plaintiff's Complaint (Dkt. No. 1) was properly
verified under 28 U.S.C. § 1746. See LeBoeuf,
Lamb, Greene & MacRae, L.L.P. v. Worsham, 185
F.3d 61, 65–66 (2d Cir.1999) (use of the language
“under penalty of perjury” substantially complies
with 28 U.S.C. § 1746).
In determining whether a genuine issue of material fact exists,
the court must resolve all ambiguities and draw all reasonable
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inferences against the moving party. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir.2008).
Where a party is proceeding pro se, the court is obliged to
“read [the pro se party's] supporting papers liberally, and ...
interpret them to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
However, “a pro se party's ‘bald assertion,’ unsupported by
evidence, is not sufficient to overcome a motion for summary
judgment.” Cole v. Artuz, No. 93 Civ. 5981(WHP)(JCF), 1999
WL 983876 at *3, 1999 U .S. Dist. LEXIS 16767 at *8
(S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d
18, 21 (2d Cir.1991)). 3
3 Copies of unpublished decisions cited herein will
be provided to Plaintiff in accordance with Lebron
v. Sanders, 557 F.3d 76, 79 (2009) (per curiam ).
[Editor's Note: Attachments of Westlaw case copies
deleted for online display.]
B. Summary Judgment When a Pro Se Plaintiff Fails
to Oppose the Motion
Plaintiff has not opposed Defendants' summary judgment
motion. N .D.N.Y. L.R. 56.2 requires the moving party to
notify a pro se litigant of the consequences of failing to
respond to the summary judgment motion. 4 Where a party
has been given satisfactory notice of the consequences of
failing to respond to a motion for summary judgment, the
nonmovant's failure to respond to the movant's statement of
material facts will result in the facts set forth in the statement
being accepted as true to the extent they are supported by the
evidence in the record. 5 See L.R. 7.1(a) (3) (“The Court shall
deem admitted any properly supported facts set forth in the
Statement of Material Facts that the opposing party does not
specifically controvert.” ) (emphasis in original).
4 A Notice of the Consequences of Failing to
Respond to a Summary Judgment Motion was
served with Defendants' motion papers in this case.
(Dkt. No. 25 at 3.)
5 See Vermont Teddy Bear Co., Inc. v. 1–800
Beargram Co., 373 F.3d 241, 244 (2d Cir.2004)
(“[I]n determining whether the moving party has
met [its] burden of showing the absence of a
genuine issue for trial, the district court may
not rely solely on the statement of undisputed
facts contained in the moving party's Rule 56.1
Statement. It must be satisfied that the citation to
evidence in the record supports the assertion.”)
(citation omitted).
*5 A pro se plaintiff's failure to oppose a summary judgment
motion does not mean that the defendant's motion is to
be granted automatically. An unopposed summary judgment
motion may properly be granted “only if the facts as to which
there is no genuine dispute show that the moving party is
entitled to judgment as a matter of law.” Champion v. Artuz,
76 F.3d 483, 486 (2d Cir.1996) (internal quotes and citations
omitted).
A district court has no duty to perform an independent review
of the record to find proof of a factual dispute where the
nonmovant fails to respond to a summary judgment motion.
See Amnesty America. v. Town of West Hartford, 288 F.3d
467, 470 (2d Cir.2000). This is so even where a plaintiff is
appearing pro se because even pro se plaintiffs must obey
the Court's procedural rules. See McNeil v. United States,
508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).
Although not obligated to do so, the Court has elected
to conduct a review of the entire record in this case. See
Monahan v. New York City Dept. of Corrections, 214 F.3d
275, 292 (2d Cir.2000) (a court may, in its discretion, “choose
to conduct an assiduous review of the record” even when a
party has failed to file a statement of material facts). Because
Plaintiff's Complaint is verified, the Court will treat it as an
affidavit in opposition to Defendants' motion. See Colon, 58
F.3d at 872.
III. ANALYSIS
A. Administrative Exhaustion
Defendants argue that they are entitled to summary judgment
based upon Plaintiff's failure to exhaust his administrative
remedies with regard to Defendants' alleged failure to protect
him from a Bloods gang member in violation of his Eighth
Amendment rights. (Dkt. No. 25–6 at 5–6.)
1. Exhaustion Under The Prison Litigation Reform Act
The Prison Litigation Reform Act (“PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 ... or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted.” 42 U .S.C. § 1997(e). The PLRA requires
“proper exhaustion” of prison administrative remedies, which
includes compliance with agency deadlines and procedural
rules. See Woodford v. Ngo, 548 U.S. 81, 90, 126 S.Ct. 2378,
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165 L.Ed.2d 368 (2006). “[P]roper exhaustion ... means using
all steps that the agency holds out and doing so properly
(so that the agency addresses the issues on the merits).”
Id. Exhaustion is mandatory, and an inmate cannot satisfy
the PLRA's exhaustion requirement by filing an untimely or
administratively defective grievance or appeal. Id. at 84–85.
The DOCCS Inmate Grievance Procedure (“IGP”) has
three stages which prison inmates must complete. See N.Y.
Comp.Codes R. & Regs. tit. 7, § 701.5; see also Hernandez
v. Coffey, 582 F.3d 303, 305 (2d Cir.2009). First a grievance
complaint must be submitted to the Inmate Grievance
Resolution Committee (“IGRC”) for an initial determination
within twenty-one calendar days of the alleged occurrence.
Id. at § 701.5(a). Next, if the IGRC decision is adverse
to the inmate, he has seven calendar days to appeal to
the prison superintendent. Id. at § 701.5(c). If dissatisfied
with the superintendent's decision, the inmate has another
seven calendar days to appeal the superintendent's decision
to the Central Office Review Committee (“CORC”). Id. at §
701 .5(d).
*6 An inmate must follow through on all three steps to
complete the exhaustion process. See Morrison v. Stefaniak,
523 F. App'x 51 (2d Cir.2013) (summary order) (upholding
dismissal of complaint because plaintiff failed to appeal
IGRC's decision); Belile v. Griffin, No. 9:11–CV0092 (TJM/
DEP), 2013 WL 1776086, at *3–4, 7, 2013 U.S. Dist. LEXIS
47137, at *10, 22–23 (N.D.N.Y. Feb.12, 2013) (plaintiff failed
to exhaust his administrative remedies because he had not
followed through on all of the steps, i.e., he did not appeal to
the superintendent of the facility or appeal any unfavorable
decision of the superintendent to CORC).
Because failure to exhaust is an affirmative defense,
defendants bear the burden of showing that a plaintiff has
failed to exhaust his available administrative remedies. See
Murray v. Palmer, No. 9:03–CV–1010 (GTS/GHL), 2010
WL 1235591, at *4, 2010 U.S. Dist. LEXIS 32014, at
* 16 (N.D.N.Y. Mar.31, 2010). If a defendant meets that
burden, however, a plaintiff's failure to exhaust does not
end the review. “[O]nce a defendant has adduced reliable
evidence that administrative remedies were available to
Plaintiff and that Plaintiff nevertheless failed to exhaust
those administrative remedies, Plaintiff must then ‘counter’
Defendants' assertion by showing exhaustion unavailability,
estoppel, or ‘special circumstances' [under Hemphill v. State
of New York, 380 F.3d 680, 686 (2d Cir.2004) ].” Murray,
2010 WL 1235591, at *4. Hemphill sets forth a three-part
inquiry for district courts. 6 First, courts must determine if
administrative remedies were in fact available to plaintiff.
In Hemphill, the Second Circuit stated that “[t]he test for
deciding whether the ordinary grievance procedures were
available must be an objective one: that is, would ‘a similarly
situated individual of ordinary firmness' have deemed them
available.” Hemphill, 380 F.3d at 688.
6 Subsequent to Hemphill, the Supreme Court
decided Woodford v. Ngo, 548 U.S. 81, 126 S.Ct.
2378, 165 L.Ed.2d 368 (2006). The question
addressed in Woodford was whether “a prisoner
can satisfy the [PLRA's] exhaustion requirement
by filing an untimely or otherwise procedurally
defective administrative grievance or appeal.” Id.
at 83–84. The Supreme Court resolved the question
in the negative, explaining that PLRA requires
“proper exhaustion”—“using all steps that the
agency holds out, and doing so properly (so that the
agency addressed the issues on the merits).” Id. at
90 (citation omitted). Although the Second Circuit
has acknowledged that there is some question as
to whether the estoppel and special circumstances
inquiries in Hemphill survived Woodford, the Court
has as yet found it unnecessary to decide the
issue and appears to still be considering all three
Hemphill inquiries in exhaustion cases. See, e.g.,
Amador v. Andrews, 655 F.3d 89, 102–03 (2d
Cir.2011) (finding it unnecessary to decide whether
Hemphill is still good law because plaintiff had
failed to establish that defendants were estopped
from raising non-exhaustion as an affirmative
defense) (internal quotation marks omitted).
Second, courts must determine if the defendants are
estopped from presenting nonexhaustion as an affirmative
defense because they prevented the plaintiff inmate from
exhausting his administrative remedies by conduct such as
“ ‘beating him, threatening him, denying him grievance
forms and writing implements, and transferring him to
another correctional facility.’ “ Hemphill, 380 F.3d at 688
(citing Ziemba v. Wezner, 366 F.3d 161, 162 (2d Cir.2004)).
Generally, defendants cannot be estopped from asserting a
non-exhaustion affirmative defense based upon the actions
or inaction of other individuals. Murray, 2010 WL 1235591,
at *5 & n. 26 (collecting cases); McCloud v. Tureglio, No.
07–CV–0650, 2008 WL 1772305, at * 12, 2008 U.S. Dist.
LEXIS 124388, at *44 (N.D.N.Y. Apr. 15, 2008) (Lowe,
M.J.) (“None of those documents allege facts plausibly
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suggesting that Defendant's own actions inhibited Plaintiff's
exhaustion of remedies during the time in question.”). Third,
the Second Circuit explained in Hemphill that there are certain
“special circumstances” in which even though administrative
remedies may have been available and the defendants may
not be estopped from asserting a nonexhaustion defense, the
inmate's failure to exhaust may be justified. Hemphill, 380
F.3d at 686.
2. Exhaustion Analysis
*7 In his Complaint, Plaintiff has alleged that he asked to file
a grievance with regard to the placement of a known Bloods
gang member in his cell. (Dkt. No. 1 at ¶ 4.) According to
Plaintiff, he was told by the grievance officer that the issue
was not grievable and, as a result, never received a response
to his grievance. Id. Jeffrey Hale (“Hale”), Assistant Director
for the DOCCS IGP, has stated in his Declaration that the
IGP is the appropriate vehicle for inmates to use to address
issues regarding the person with whom they are housed and
complaints against staff. (Dkt. No. 25–5 at ¶ 3.) Defendants
have not, however, submitted evidence disputing Plaintiff's
claim that he was told his complaint was not grievable.
Instead, Defendants have focused on a grievance filed by
Plaintiff with regard to the medical care he received for
the injuries he sustained in the fight with Adams and have
relied upon Plaintiff's failure to appeal from the denial of that
grievance as evidence of failure to exhaust the claim asserted
in this lawsuit. (Dkt. Nos. 25–3 at ¶ 9 and pp. 11–13; 25–
6 at 6.) In Grievance No. UST–50552, Plaintiff referenced
the fight in his cell but only in the context of the fight as the
cause of his broken nose. Id. at p. 11. Plaintiff's complaint
was that it took five days for the medical staff at Upstate to
send him out for x-rays. Id. The investigative report on the
grievance references only the medical care given Plaintiff,
and the grievance was denied solely on the grounds that there
was no urgent need for an x-ray. Id. at p. 13. In short, the
grievance has no direct relevance to Plaintiff's exhaustion of
the failure to protect claim asserted in this lawsuit.
The relevant exhaustion issue on this motion is whether the
allegation in Plaintiff's Complaint regarding his unsuccessful
attempt to grieve the failure to protect issue is sufficient by
itself to raise an issue of fact under any of the Hemphill
considerations. A number of district courts in the Second
Circuit have found either that the IGP is unavailable to
an inmate who has been told by a prison official that his
complaint was not grievable, or that the misinformation
constitutes a special circumstance excusing exhaustion under
Hemphill. 7 See, e.g., Partee v. Goord,, No. 06–15528, 2007
WL 2164529(SAS), at *4, 2007 U.S. Dist. LEXIS, at *14
(S.D.N.Y. July 25, 2007) (excusing exhaustion requirement
because plaintiff was told in reply to his grievance that his
claim was outside the purview of the IGRC, and he reasonably
understood this to mean his dispute was not grievable); Lewis
v. Cunningham, No. 05–9243(GBD), 2007 WL 2412258, at
*2, 2007 U.S. Dist. LEXIS 62346, at *5 (S.D.N.Y. Aug.23,
2007) (finding special circumstances justifying failure to
exhaust remedies because a supervisor told plaintiff that filing
a grievance was not the proper way to address a complaint,
and to instead write a letter to the Chief Medical Officer at the
Department of Health, which he did); Jeffers v. Goord, No.
9:99–CV–0335 (FJS/GHL), 2005 WL 928628, at *6, 2005
U.S. Dist. LEXIS 39309, at *16–17 (N.D.N.Y. Apr.4, 2005)
(“[p]rison official may prevent a prisoner from utilizing a
remedy by incorrectly representing to the prisoner that his
complaint is not grievable, or that it is grievable only through
another avenue.”).
7 Courts have noted that there is significant overlap
in the three Hemphill considerations. See, e.g.,
Barksdale v. Frenya, No. 9:10–CV–00831 (MAD/
DEP), 2012 WL 4107805, at *6 n. 11, 2012
U.S. Dist. LEXIS 134738, at *21 n. 11 (N.D.N.Y.
Sept.19, 2012) (“In practicality these three prongs
of the prescribed test, though perhaps intellectually
distinct, plainly admit of significant overlap.”). A
failure to exhaust as a result of being given false
information on whether a complaint was grievable
by a non-defendant could arguably fit within either
the first or third consideration.
*8 Defendants' failure to submit evidence refuting or
explaining Plaintiff's claim that he was told his complaint
was not grievable leaves material issues of fact regarding the
applicability of one or more of the Hemphill considerations.
Therefore, the Court recommends that Defendants' request
for summary judgment on the grounds that Plaintiff failed
to exhaust his administrative remedies be denied without
prejudice.
B. Battiste and Bezio
The Eighth Amendment to the United States Constitution
“requires prison officials to take reasonable measures to
guarantee the safety of inmates in their custody.” Hayes v.
New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir.1996).
Prison officials are liable under the Eighth Amendment for
harm incurred by an inmate if they act with deliberate
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indifference to the inmate's safety. Morales v. New York State
Dep't of Corr., 842 F.2d 27, 30 (2d Cir.1988) (“[A] state
prison guard's deliberate indifference to the consequences of
his conduct for those under his control and dependent upon
him may support a claim under § 1983.”); see also Hendricks
v. Coughlin, 942 F.2d 109, 113 (2d Cir.1991) (“[A]n inmate's
claim that prison officials failed, as a result of their deliberate
indifference, to protect [the inmate] from the violent actions
of other inmates may state a viable § 1983 cause of action.”);
Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir.1985) (“The
failure of custodial officers to employ reasonable measures to
protect an inmate from violence by other prison residents has
been considered cruel and unusual punishment”); Wassmann
v. County of Ulster, 528 F. App'x 105, 106 (2d Cir.2013)
(“Officers at correctional facilities have a duty to protect
inmates from violence at the hands of other inmates.”) (citing
Farmer v. Brennan, 511 U.S. 825, 833, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994)).
To prevail on a failure to protect claim, an inmate must
show that (1) he was incarcerated under conditions posing
a substantial risk of serious harm; and (2) prison officials
exhibited deliberate indifference. Farmer, 511 U.S. at 837.
In order to establish deliberate indifference where a prison
official has failed to protect an inmate from violence by
another inmate, a plaintiff must prove that the defendant
official actually knew of and disregarded an excessive risk
of harm to the plaintiff's safety. Hayes, 84 F.3d at 620. Even
assuming that the allegations in Plaintiff's Complaint are
sufficient to satisfy, or at least raise a question of fact on
the issue of substantial risk of harm, the summary judgment
record is devoid of evidence that Battiste and Bezio exhibited
deliberate indifference to Plaintiff's safety in placing Adams
in his cell.
The law is clear that “personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.” McKinnon v. Patterson, 568
F.2d 930, 934 (2d Cir.1977). “Because vicarious liability is
inapplicable to ... § 1983 suits, a plaintiff must plead that each
Government-official defendant, through the official's own
individual actions, has violated the Constitution.” Ashcroft
v. Iqbal, 556 U.S. 662, 676, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). (“Government officials may not be held liable
for the unconstitutional conduct of their subordinates under
a theory of respondeat superior.”). “Holding a position in a
hierarchical chain of command, without more, is insufficient
to support a showing of personal involvement.” Groves v.
Davis, No. 9:11–CV–1317 (GTS/RFT), 2012 WL 651919,
at *6, 2012 U.S. Dist. LEXIS 25367, at *22–23 (N.D.N.Y.
Feb.28, 2012) (citing McKinnon, 568 F.2d at 934); see also
Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003) (a
“mere ‘linkage in the prison chain of command’ is insufficient
to implicate a state commissioner of corrections ... in a § 1983
claim”) (citing Ayers, 780 F.2d at 210). Therefore, “a plaintiff
must ... allege a tangible connection between the acts of a
defendant and the injuries suffered .” Bass v. Jackson, 790
F.2d 260, 263 (2d Cir.1986).
*9 The Second Circuit has held that personal involvement
by a supervisor necessary to state a claim under § 1983 may
be found where: “(1) the defendant participated directly in the
alleged constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal, failed
to remedy the wrong, (3) the defendant created a policy or
custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, (4) the
defendant was grossly negligent in supervising subordinates
who committed the wrongful acts, or (5) the defendant
exhibited deliberate indifference to the rights of inmates by
failing to act on information indicating that unconstitutional
acts were occurring.” Colon, 58 F.3d at 873. 8
8 The Supreme Court's decision in Ashcroft v. Igbal,
556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009) has arguably nullified some of the
categories set forth in Colon. See Sash v. United
States, 674 F.Supp.2d 531, 543–44 (S.D.N.Y.2009)
(collecting cases). However, the Second Circuit has
yet to issue a decision addressing Igbal's effect
on the Colon categories, and I will assume for
purposes of this motion that Colon remains good
law.
Plaintiff claims that he wrote to Defendants Battiste and Bezio
with respect to his safety concerns with regard to sharing a
cell with a Bloods gang member after he was dissatisfied with
the response of Upstate officials to his complaints in the fall
or winter of 2011. (Dkt. No. 1 at ¶ 6.) According to Plaintiff
after he sent the letters to Battiste and Bezio he was told by
Upstate officials that his safety issue had been addressed. Id.
Battiste and Bezio did not submit evidence regarding whether
they received letters from Plaintiff and, if so, took any action
in response. Instead, they rely upon an attorney's declaration
stating upon information and belief that a search was made of
records in the DOCCS Central Office and no correspondence
to or from Plaintiff was found. (Dkt. No. 25–2 at ¶ 3.) The
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source of counsel's information and belief appears to be the
July 25, 2013, unsworn letter from a DOCCS senior attorney
annexed as an exhibit. Id. at p. 4.
“[O]nly admissible evidence need be considered by the trial
court in ruling on a motion for summary judgment.” Raskin v.
Wyatt Co., 125 F.3d 55, 66 (2d Cir.1997); see also Salahuddin,
467 F.3d at 272–73 (movant bears the initial burden of
showing through the production of admissible evidence that
he is entitled to judgment as a matter of law). An attorney's
affidavit that is not based upon personal knowledge and relies
upon an attached letter not sworn as required by Rule 56(e)
is not admissible evidence and not properly considered on
a summary judgment motion. 9 See Beyah v. Coughlin, 789
F.2d 986, 989 (2d Cir.1986); see also Sepanski v. Jani–King,
Inc., No. 10–CV–518S, 2013 WL 4455412, at *2–3, *8, 2013
U.S. Dist. LEXIS 116437, at *8 (W.D.N.Y. Aug.16, 2013)
(holding that three unsworn letters submitted by plaintiff
could not be considered in connection with a motion for
summary judgment).
9 Statements in Defendants' Statement Pursuant
to Rule 7.1(a)(3) are deemed admitted on an
unopposed summary judgment motion only to
the extent they are supported by admissible
evidence. See Amaker v. Foley, 274 F.3d 677,
681 (2d Cir.2001) (“court may not rely solely
upon statement of undisputed facts in determining
whether movant has met this burden of showing
the absence of a genuine issue for trial; court
must be satisfied that the citation to evidence
in the record supports the assertion). Paragraph
13 of Defendants' Rule 7.1(a)(3) Statement (Dkt.
No. 25–1), stating that “[t]here is no evidence
to demonstrate that Defendants Bezio or Battiste
received correspondence from Plaintiff,” relies
upon an attorney's declaration that is not based
upon personal knowledge and an unsworn letter,
neither of which constitutes admissible evidence.
See Beyah v. Coughlin, 789 F.2d 986, 989 (2d
Cir.1986).
A movant's burden of demonstrating the absence of a question
of material fact remains the same where the motion is
unopposed. See Vt. Teddy Bear Co. v. 1–800 Beargram Co.,
373 F.3d 241, 244 (2d Cir.2004) (“If the evidence submitted
in support of the summary judgment motion does not meet
the movant's burden of production, then summary judgment
must be denied even if no opposing evidentiary matter is
presented.”) (citation and internal quotation marks omitted).
Defendants have not satisfied their burden of production with
respect to Plaintiff's claim that he wrote to Battiste and Bezio
regarding his concerns about Bloods.
*10 Nonetheless, because Plaintiff has not alleged facts in
his Complaint showing that Battiste or Bezio had knowledge
of, or personal involvement in, Adams being placed in a
cell with him, or that they were aware of Adams' Bloods
affiliation, he has failed to state an Eighth Amendment claim
against the two supervisory officials for failure to protect
him from the injuries he sustained in the fight with Adams.
See McKinnon, 568 F.2d at 934 (personal involvement in
constitutional deprivation is a prerequisite to an award of
damages under § 1983); Hayes, 84 F.3d at 620 (defendant
official must actually have known of and disregarded an
excessive risk of harm to the plaintiff's safety to establish
deliberate indifference).
Therefore, the Court recommends that Battiste and Bezio
be granted summary judgment dismissing the Complaint as
against them.
C. Oropallo
Even assuming, arguendo, that the allegations in Plaintiff's
Complaint are sufficient to satisfy, or at least raise a question
of fact, on the issue of substantial risk of harm, the evidence
in the summary judgment record establishes that Defendant
Oropallo did not know of and disregard an excessive risk of
harm to Plaintiff's safety in connection with Adams being
placed in Plaintiff's cell. See Hayes, 84 F.3d at 620. The prison
files on inmate Adams contained no notations indicating
that he was gang related. (Dkt. No. 25–3 at ¶ 8.) The
DOCCS “enemies” list did not identify Plaintiff and Adams
as enemies. Id. at ¶ 6. Moreover, Plaintiff's security file
contained no requirements for protective custody. Id. at ¶ 10.
According to Oropallo, prior to the altercation between
Plaintiff and Adams, he had no personal knowledge or
information that would have led him to believe that Adams
was gang affiliated or would pose a threat to Plaintiff. (Dkt.
No. 25–4 at ¶ 7.) Adams had not told Oropallo he was in
a gang before being placed in Plaintiff's cell. Id. at ¶ 10.
Moreover, the assignment of inmates in double cell housing
was not within Oropallo's authority. Id. at ¶ 9.
Since Plaintiff has failed to submit opposition to Defendants'
motion, the Court can look only to his verified Complaint
for evidence demonstrating that a genuine issue of material
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fact exists as to whether Oropallo knew of and disregarded
an excessive risk of harm to the plaintiff's safety. Id. Mere
allegations in Plaintiff's Complaint, especially conclusory
allegations or conjecture and speculation, are insufficient to
create a genuine issue of fact. See Matsushita, 475 U.S. at
585–86; Kerzer, 156 F.3d at 400.
None of the allegations in Plaintiff's verified Complaint
contradicts Defendants' evidence that prison records did not
identify Adams as a member of the Bloods gang, that Oropallo
had no knowledge that Adams was a member of the Bloods
gang at the time he was placed in Plaintiff's cell, and that
Oropallo had no authority with regard to the assignment of
inmates in double cells. Therefore, Plaintiff has failed to raise
a question of fact as to whether Oropallo was deliberately
indifferent to his safety, a necessary element of proof on an
Eighth Amendment claim for cruel and inhuman punishment
based upon a failure to protect. See Farmer, 511 U.S. at 837.
Therefore, the Court recommends that Oropallo's motion for
summary judgment be granted.
*11 ACCORDINGLY, it is hereby
RECOMMENDED that Defendants' motion for summary
judgment (Dkt. No. 25) be GRANTED; and it is further
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections
to the foregoing report. Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85 (2d Cir.1993) (citing Small v. Sec'y of Health
and Human Servs., 892F.2d 15 (2d Cir.1989) (per curiam); 28
U.S.C. § 636(b) (1); Federal Rules of Civil Procedure 72, 6(a).
Filed June 18, 2014.
All Citations
Not Reported in F.Supp.3d, 2014 WL 4146276
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 47 of 75

Price v. Oropallo
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 9:13cv00563
PRICE v. OROPALLO ET AL
— N.D.N.Y. May 15, 2013 Docket
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 48 of 75

Price v. Oropallo
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History
There are no History results for this citation.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 49 of 75

Price v. Oropallo
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 50 of 75

Jenkins v. Cordero, Not Reported in Fed. Supp. (2019)
2019 WL 2121655
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 2121655
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Gerard JENKINS, Plaintiff,
v.
Correction Officer J. CORDERO, Correction
Officer Mayfield, Hearing Officer: Assistant Deputy
Superintendent of Programs J. Wood, Defendants.
17 Civ. 1592 (JCM)
|
Signed 05/15/2019
Attorneys and Law Firms
Gerard Jenkins, Otisville, NY, pro se.
Jeb Harben, Kacie Alina Lally, Office of the Attorney
General, New York, NY, for Defendants.
OPINION AND ORDER
JUDITH C. McCARTHY, United States Magistrate Judge
*1 Plaintiff Gerard Jenkins (“Plaintiff”) proceeding pro
se commenced this action pursuant to 42 U.S.C. § 1983
alleging violations of his Eighth Amendment and Fourteenth
Amendment rights. 1 (Docket No. 2). The Court held an
evidentiary hearing on January 30, 2019 on the issue of
whether Plaintiff exhausted his administrative remedies under
the Prison Litigation Reform Act (“PLRA”). The parties
submitted post-hearing briefs. 2 For the reasons set forth
below, after hearing the testimony and considering the post-
hearing briefs, the Court finds that Plaintiff has satisfied the
exhaustion requirements of the PLRA.
1 This action is before this Court for all purposes on
the consent of the parties, pursuant to 28 U.S.C. §
636(c). (Docket No. 47).
2 The parties' briefs are hereinafter referred to as
“Pl. Br.” and “Defs. Br.” respectively. (Docket Nos.
68, 72). All page number citations refer to the one
assigned upon electronic filing.
I. BACKGROUND
A. Procedural Background
On March 2, 2017, Plaintiff filed a complaint alleging (i)
correction officers Cordero and Mayfield used excessive
force against him while he was incarcerated at Sing Sing
Correctional Facility (“Sing Sing”); and (ii) defendant Deputy
Superintendent of Programs Wood violated his due process
rights by improperly disciplining him on allegedly false
charges. (Docket No. 2). Defendants moved to dismiss
the complaint against them claiming that Plaintiff failed
to exhaust his administrative remedies with respect to his
Eighth Amendment claim and did not plausibly allege
his Fourteenth Amendment claim. (Docket No. 14). The
Honorable Vincent L. Briccetti denied the motion to dismiss
as to the Eighth Amendment excessive force claim against
defendants Cordero and Mayfield, holding that dismissal for
failure to exhaust administrative remedies was unwarranted at
the pleading stage. Jenkins v. Cordero, No. 17 Civ. 1592 (VB),
2018 WL 456311, at *3 (S.D.N.Y. Jan. 17, 2018). 3 Judge
Briccetti granted the motion to dismiss as to the Fourteenth
Amendment claim against defendant Wood, finding that
Plaintiff failed to plausibly allege this claim. Id. at *3-4.
3 In accordance with Lebron v. Sanders, 557 F.3d
76 (2d Cir. 2009) and Local Rule 7.2 of the Local
Civil Rules of the United States District Courts for
the Southern and Eastern Districts of New York,
a copy of this case and other cases, infra, that
are unpublished or only available by electronic
database, accompany this opinion and shall be
simultaneously delivered to pro se Plaintiff.
Following the close of discovery, Defendants requested an
evidentiary hearing to determine whether Plaintiff exhausted
his administrative remedies given the dispute over whether
Plaintiff ever attempted to file a grievance within the
timeframe required by the Department of Corrections and
Community Supervision (“DOCCS”). (Docket No. 36). Judge
Briccetti granted Defendants' request for an evidentiary
hearing, and the parties subsequently consented to proceed
before the undersigned for all purposes. (Docket No. 47). This
Court held an evidentiary hearing on January 30, 2019, and
the parties submitted post-hearing briefs.
B. Factual Background
*2 Plaintiff alleges that on August 31, 2015 he was assaulted
by CO Cordero and CO Mayfield while his wife was visiting
him at Sing Sing. (Compl.; Tr. 110:11-14). CO Cordero filed
a misbehavior report against Plaintiff, and after a disciplinary
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hearing, Plaintiff was placed in the special housing unit
(“SHU”). 4 (Compl. Ex. A; Tr. 110:15-21). Plaintiff testified
that on September 2, 2015, while he was in the SHU, he
submitted a grievance related to the alleged assault. (Tr.
103:20-104:4, 112:2-10; Defs. Ex. 1). Plaintiff claims that
after he did not receive a response or a grievance number,
he submitted a second grievance on October 5, 2015. (Tr.
112:5-7; Defs. Ex. 1). Plaintiff testified that in both instances,
he submitted the grievances while in the SHU by handing his
grievances to the correction officer who came around with the
daily mailbox. (Tr. 111:7-112:18). At the evidentiary hearing,
Plaintiff did not know the identity of the correction officer he
gave his September 2, 2015 grievance to, but he described her
as a tall female correction officer whose name began with the
letter R. (Id. at 119:19-20; 115:24-116:8). Plaintiff could not
recall if the same correction officer picked up the grievance
on October 5, 2015, but he recalled giving his grievance to a
female correction officer. (Id. at 122:2-124:4).
4 Plaintiff appealed the results of his disciplinary
hearing, and the director of inmate disciplinary
programs reversed the disciplinary determinations
on February 13, 2017. (Compl. Ex. C).
Plaintiff was released from the SHU on November 10, 2015.
(Tr. 112:13-15). Upon his release, he asked inmate Vincent
Warren, the prison grievance representative, about the status
of his grievances. (Defs. Ex. 1). Mr. Warren told Plaintiff
that he remembered filing his grievance, but later informed
him that the grievance had not been filed. (Id.). According to
Plaintiff, on November 24, 2015, he spoke with the grievance
supervisor, Quandera Quick, who informed Plaintiff that his
grievances had not been received and the time to file them
had passed. (Id.). That same day Plaintiff submitted another
grievance concerning the procedures used for collecting
grievances and indicated that his grievances were not being
filed. (Id.).
At the evidentiary hearing, Ms. Quick explained that there
are two ways an inmate housed in the SHU can file a
grievance with the Inmate Grievance Resolution Committee
(“IGRC”). (Tr. 20:18-21). First, the inmate could “hand-
deliver the grievance to the Grievance Sergeant while he or
she makes rounds.” (Id.). Second, the inmate could “place [the
grievance] in the mailbox that's in the housing unit.” (Id.).
With respect to the second option, Ms. Quick explained that a
correction officer will bring the mailbox around to the entire
facility, including the SHU, and then bring the mailbox to the
mailroom, who in turn sends any grievances to the grievance
office. (Id. at 21:2-18). In this case, Plaintiff testified that he
used the second method of filing a grievance when he handed
his grievance to the correction officer assigned to general mail
collection in the SHU. (Id. at 111:7-112:18).
Ms. Quick explained that once the grievance office receives a
grievance, she processes it in accordance with Directive 4040.
(Tr. 15:6-9). Specifically, Ms. Quick reviews the grievance,
codes it based on the nature of the allegations, and then gives
it to the grievance clerk to assign a grievance number that is
entered into a computer database. (Id. at 15:9-16:7). Once a
grievance is given a number and entered into the database, it
is considered filed. (Id. at 16:6-8).
Ms. Quick testified that she had no recollection of receiving
or filing the subject grievances from Plaintiff. (Tr. 26:11-18).
She also reviewed the grievance office's database and
confirmed that Plaintiff's alleged grievances from September
2, 2015 and October 5, 2015 had not been filed. (Tr. 33:2-5;
Defs. Ex. 3). Ms. Quick did, however, receive Plaintiff's
November 24, 2015 grievance, in which he stated that his
grievances were not being filed. (Tr. 26:22-25; Defs. Ex.
1). Upon receiving Plaintiff's November 24, 2015 grievance,
Ms. Quick consulted with Mr. Warren about whether the
grievance office had received Plaintiff's prior grievances. (Tr.
29:14-30:2). On December 1, 2015, Mr. Warren wrote a letter
to Ms. Quick stating that he had never seen the grievances
Plaintiff was asking about. (Defs. Ex. 2). However, Mr.
Warren recanted the statement in his letter at the evidentiary
hearing and testified that he wrote that he had never seen
Plaintiff's grievance because he was afraid of being fired from
his position at the grievance office if he admitted that he saw
the grievance. (Tr. 67:18-68:3, 76:22-77:20).
*3 Inmate John Hale, who served as a grievance file clerk at
the time, also testified that he remembered seeing a grievance
concerning an assault that took place on the visit floor with
CO Cordero, but he could not remember if the grievance was
the November 24 grievance or the September 2 or October 5
grievances. (Tr. 100:7-102:8).
II. LEGAL STANDARDS
The PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in
any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). The PLRA's exhaustion requirement
is “mandatory,” therefore “foreclosing judicial discretion.”
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Jenkins v. Cordero, Not Reported in Fed. Supp. (2019)
2019 WL 2121655
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
Ross v. Blake, 136 S. Ct. 1850, 1857 (2016). “[P]roper
exhaustion ... means using all steps that the agency holds out,
and doing so properly (so that the agency addresses the issues
on the merits).” Hernandez v. Coffey, 582 F.3d 303, 305 (2d
Cir. 2009) (citing Woodford v. Ngo, 548 U.S. 81, 90 (2006)).
“The exhaustion inquiry thus requires that we look at the state
prison procedures and the prisoner's grievance to determine
whether the prisoner has complied with those procedures.”
Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009).
In New York State, a prisoner must comply with the rules of
New York's Inmate Grievance Program (“IGP”). To exhaust
a claim, a prisoner must complete the following three steps:
(1) submit a complaint to the clerk of the facility's IGRC
within twenty-one days of the alleged incident; (2) appeal an
adverse decision to the superintendent of the facility within
seven days of receipt of the IGRC's written response; and
(3) appeal an unfavorable decision by the superintendent to
the Central Office Review Committee within seven days of
receipt of the superintendent's written response. 7 N.Y.C.R.R.
§ 701.5. A prisoner who has not received a response within
the prescribed timeframe may appeal to the next level. Id. §
701.6(g)(2).
Because Plaintiff's failure to exhaust administrative remedies
is an affirmative defense, Defendants bear the initial burden
of establishing that a grievance process existed and applied
to the alleged dispute. See Hubbs v. Suffolk Cnty. Sheriff's
Dep't, 788 F.3d 54, 59 (2d Cir. 2015). Defendants can meet
their burden by “pointing to ‘legally sufficient source[s]’
such as statutes, regulations or grievance procedures.” Id.
(quoting Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003)).
If Defendants satisfy their initial burden, the burden shifts
to Plaintiff to demonstrate “that other factors ... rendered
a nominally available procedure unavailable as a matter of
fact.” Id.
In Ross, the United States Supreme Court identified “three
kinds of circumstances in which an administrative remedy,
although officially on the books, is not capable of use to obtain
relief.” 136 S. Ct. at 1859. First, “an administrative procedure
is unavailable when (despite what regulations or guidance
materials may promise) it operates as a simple dead end—
with officers unable or consistently unwilling to provide any
relief to aggrieved inmates.” Id. Second, “an administrative
scheme might be so opaque that it becomes, practically
speaking, incapable of use.” Id. Third, an administrative
procedure is unavailable when “prison administrators thwart
inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 1860.
*4 Shortly after the Supreme Court's decision in Ross, the
Second Circuit elaborated upon the “opaqueness” exception
in Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016). In
Williams, an inmate housed in the SHU satisfied the PLRA's
exhaustion requirement when he handed a grievance to a
correction officer who then failed to file it. The Second
Circuit explained that “[o]n their face, the regulations only
contemplate appeals of grievances that were actually filed.”
Id. at 124. Because the plaintiff's grievance was not filed,
it was “practically impossible for him to ascertain whether
and how he could pursue his grievance.” Id. Therefore, the
Second Circuit concluded that “the regulatory scheme ...
[was] ‘so opaque’ and ‘so confusing’ that ... no reasonable
prisoner can use [it].’ ” Id. (quoting Ross, 136 S. Ct. at 1859).
Since Williams, numerous courts in this Circuit have followed
its reasoning when assessing the “inescapable quandary that
inmates find themselves in when their grievances are not
filed.” McRae v. Cordero, No. 15 Civ. 4334 (NSR)(PED),
2018 WL 3611964, at *6 (S.D.N.Y. July 26, 2018); see also
Ortiz v. Annucci, No. 17 Civ. 3620 (RJS), 2019 WL 1438006,
at *8 (S.D.N.Y. Mar. 29, 2019) (“If, in fact, Plaintiff timely
attempted to file his grievance by handing it to an officer while
in SHU and that officer failed to file the grievance, Plaintiff's
avenues for pursuing the grievance would be unavailable
under Williams, excusing him from any further exhaustion
requirements.”); Terry v. Hulse, No. 16 Civ. 252 (KMK), 2018
WL 4682784, at *9-10 (S.D.N.Y. Sept. 28, 2018); Jackson v.
Downstate Corr. Facility, No. 16 Civ. 267 (NSR), 2018 WL
3650136, at *8 (S.D.N.Y. July 31, 2018).
III. DISCUSSION
Defendants have met their initial burden of demonstrating that
a grievance process existed and applied to the instant dispute.
See 7 N.Y.C.R.R. § 701.5. The Court next addresses whether
that grievance process was unavailable to Plaintiff within the
meaning of the framework established by Ross.
Plaintiff argues that he has demonstrated the second Ross
unavailability exception, the “opaqueness” exception. (Pl.
Br. at 4). Plaintiff likens this case to Williams. He argues
that he attempted to timely file his grievance regarding the
August 31, 2015 incident while in the SHU by submitting
his grievance through Sing Sing's mail system, which entails
placing his grievance in the mailbox brought around by one
of the correction officers on duty. (Id.). Plaintiff maintains
that once he filed his grievance through Sing Sing's mailing
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Jenkins v. Cordero, Not Reported in Fed. Supp. (2019)
2019 WL 2121655
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
system it was “out of [his] hands” and the regulations do
not describe a mechanism for appealing an unfiled grievance.
(Id.).
The regulations analyzed by the Second Circuit in Williams
are the same regulations as the ones here. 829 F.3d at 125-26
(citing 7 N.Y.C.R.R. §§ 701.5, 701.6, 701.8). Defendants do
not contest the applicability of the Williams analysis to the
instant case. Instead, they maintain that Plaintiff failed to
complete any step of the grievance process and challenge his
claim that he timely attempted to file a grievance while housed
in the SHU. (Defs. Br. at 8-11). Defendants question Plaintiff's
credibility, noting (1) Plaintiff had no issue filing other
grievances while in the SHU; (2) Plaintiff did not explain
why he inquired about the status of a separate grievance while
failing to mention the September 2 and October 5 grievances;
and (3) Plaintiff failed to adequately explain why he did not
have copies of the grievances in question. (Defs. Br. at 10-11).
The pertinent factual issues that this Court must decide under
Williams are whether Plaintiff attempted to file his grievance
in the prescribed time and manner, and whether his grievances
nonetheless remained unfiled.
A. Plaintiff Attempted to File His Grievance Using the
Proper Administrative Procedures
Plaintiff was initially required to submit a grievance to IGRC
within twenty-one days of the August 31, 2015 incident. The
Court credits Plaintiff's testimony that he attempted to file
a grievance while in the SHU within the twenty-one-day
period for several reasons. Plaintiff gave specific details about
how on September 2, 2015, he handed the grievance to the
correction officer who came around with the mailbox and
did so again on October 5, 2015 when he did not receive a
grievance number. Plaintiff's account was consistent with Ms.
Quick's description of the procedure for filing a grievance
from within the SHU. The Court bases its credibility
determination in part on Plaintiff's demeanor, body language
and tone of voice during his testimony. Other facts in the
record further support a finding that Plaintiff attempted to file
his grievance within the mandated timeframe. For example,
once Plaintiff was released from the SHU, he immediately
followed up with the inmate grievance representative about
the status of his grievances, and he then raised his prior
grievances with the civilian grievance supervisor to see if
they were ever filed. Furthermore, Plaintiff's testimony that
he handed his grievance to the correction officer on mail duty
remained unrebutted. For example, CO Maribel Lopez, the
correction officer Defendants called to testify that Plaintiff
did not attempt to mail a grievance while in the SHU, could
not recall if she was the correction officer assigned to mail
collection on the dates in question. (Tr. 57:1-11; 58:3-4).
*5 The evidence cited by Defendants that Plaintiff failed
to exhaust his administrative remedies does not undermine
Plaintiff's testimony. First, the evidence that Plaintiff filed
other grievances while in the SHU shows that Plaintiff knew
how to competently follow the correct grievance procedures
available to him. See Ortiz, 2019 WL 1438006, at *9 (“If
anything, Plaintiff's understanding of how the IGP process
functions in the ordinary course bolsters the inference that
the usual process did not unfold in this circumstance by
suggesting that the filing failure did not result from Plaintiff's
own ineptitude.”).
Second, Defendants argue that Plaintiff's credibility is
undermined by the fact that he filed a written complaint when
he did not receive a grievance number in connection with
a separate grievance regarding the Family Reunion Program
(“FRP”), (Defs. Ex. 6), but he did not file a similar complaint
with respect to the September 2 and October 5 grievances.
(Defs. Br. at 10). The Court showed Plaintiff Defendants'
Exhibit 6 and asked him why he requested a number for
the FRP grievance but did not include the September 2
grievance in his request. (Tr. 108:9-109:17). Plaintiff testified
that he specifically requested a number for the FRP grievance
because he was preparing for a hearing regarding the FRP
incident. (Id.). However, he did not think of requesting a
number for the September 2 grievance at that time. (Id.). In
any event, Plaintiff submitted written complaints regarding
his September 2 grievance once he learned it had not been
filed, and he promptly spoke with members of the grievance
office in person once he was released from the SHU. (See
Defs. Exs. 1, 4).
Third, Defendants maintain that Plaintiff does not offer a
sufficient explanation for why he does not have copies of
the September 2 and October 5 grievances. (Defs. Br. at
11). However, the Court credits Plaintiff's explanation that
he typically keeps copies of his grievances, but his property
bag was lost during transit and he no longer has any of his
paperwork. (Tr. 10:4-7; 125:8-12).
Accordingly, based on Plaintiff's credible testimony, the Court
finds that Plaintiff attempted to timely file his grievance
relating to the August 31, 2015 incident in accordance with
proper administrative procedures.
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Jenkins v. Cordero, Not Reported in Fed. Supp. (2019)
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
B. Plaintiff's Grievance Was Never Filed
The evidence demonstrates that Plaintiff's grievances were
not filed, even though he mailed his grievances in accordance
with the IGP. Plaintiff did not know why his grievances
were not filed, but once he mailed them, they were within
DOCCS' possession and out of Plaintiff's control. 5 In such
circumstances, the grievance process became unavailable
to Plaintiff, thereby excusing him from pursuing further
exhaustion requirements. See Curtis v. Bola, No. 15 Civ. 718
(GLS)(TWD), 2017 WL 6767392, at *13 (N.D.N.Y. Nov.
28, 2017), report and recommendation adopted by, No. 15
Civ. 718 (GLS)(TWD), 2018 WL 278673 (N.D.N.Y. Jan.
3, 2018) (the PLRA did not bar plaintiff's claims where he
mailed his grievance in accordance with the IGP “and for
reasons unknown to him and through no fault of his own,
those [grievances] did not end up in the IGP files.”).
5 At the evidentiary hearing, Mr. Warren testified
that Ms. Quick, the civilian grievance supervisor,
tampered with grievances and prevented certain
grievances from being filed. (Tr. 66:24-67:17).
Such actions, if they took place, would certainly
render the grievance process unavailable to
Plaintiff under both the second and third
unavailability exceptions. Defendants spend a
significant portion of their post-trial brief
challenging Mr. Warren's testimony. There is
insufficient evidence for the Court to make a
factual finding that Plaintiff's grievances were
intentionally destroyed. However, intent is not a
requirement under the “opaqueness” unavailability
exception enunciated by Williams. Thus, the
absence of evidence that Plaintiff's grievances
were willfully destroyed by a prison administrator
does not defeat Plaintiff's claim that the grievance
process was unavailable to him.
IV. CONCLUSION
*6 For the foregoing reasons, the Court finds that Plaintiff
has met the PLRA's exhaustion requirement, and dismissal of
his claim is not warranted. The Court schedules a Pre-Trial
Conference for June 20, 2019 at 10:00 a.m. in Courtroom
421 in the United States Courthouse, 300 Quarropas Street,
White Plains, New York 10601. Due to pro se Plaintiff's
incarceration, Defendants are directed to arrange Plaintiff's
telephonic participation at the aforementioned time and date.
The Clerk of Court is directed to mail a copy of this order to
the pro se Plaintiff.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 2121655
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 55 of 75

Jenkins v. Cordero
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (1)
Title PDF Court Date Type
1. Docket 7:17-CV-01592
Jenkins v. Cordero et al
— S.D.N.Y. Mar. 02, 2017 Docket
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Jenkins v. Cordero
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History (2)
Direct History (1)
1. Jenkins v. Cordero
2019 WL 2121655 , S.D.N.Y. , May 15, 2019
Related References (1)
2. Jenkins v. Cordero
2018 WL 456311 , S.D.N.Y. , Jan. 17, 2018
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 57 of 75

Jenkins v. Cordero
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 58 of 75

Hall v. Annucci, Not Reported in Fed. Rptr. (2023)
2023 WL 7212156
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 7212156
Only the Westlaw citation is currently available.
United States Court of Appeals, Second Circuit.
Ralph HALL, Plaintiff-Appellant,
v.
Anthony ANNUCCI, DOCCS Commissioner, in
his official and personal capacity, Griffin, GHCF
Superintendent, in his official and personal capacity,
Dr. Bentivegna, GHCF Medical Supervisor, in his
official and personal capacity, Dr. Kim, GHCF Medical
Provider, in his official and personal capacity, Aileen
McCarthy, GHCF Hospital-Infirmary Nurse, in her
official and personal capacity, Nicole Walsh, GHCF
Hospital-Infirmary Nurse, in her official and personal
capacity, Donna Heitz, GHCF Hospital-Infirmary
Nurse, in her official and personal capacity, Deborah
MacDonald, GHCF Hospital-Infirmary Nurse, in her
official and personal capacity, Defendants-Appellees,
GHCF Unknown Nursing Staff, in their official and
personal capacities as Employees at Green Haven
Correctional Facility between the September 26, 2017
date and October 30, 2017 and unnamed because of
facility failure to disclose their identities, Defendant.
22-2031
|
November 2, 2023
Appeal from a judgment of the United States District Court
for the Southern District of New York (Karas, J.).
UPON DUE CONSIDERATION, IT IS HEREBY
ORDERED, ADJUDGED, AND DECREED that the
judgment of the district court is AFFIRMED.
Attorneys and Law Firms
FOR PLAINTIFF-APPELLANT: Ralph Hall, pro se,
Stormville, NY.
FOR DEFENDANTS-APPELLEES: Barbara D.
Underwood, Solicitor General, Ester Murdukhayeva, Deputy
Solicitor General, Stephen J. Yanni, Assistant Solicitor
General, for Letitia James, Attorney General of the State of
New York, New York, NY.
PRESENT: ROBERT D. SACK, GERARD E. LYNCH,
MICHAEL H. PARK, Circuit Judges.
SUMMARY ORDER
*1 Plaintiff-Appellant Ralph Hall, proceeding pro se,
alleges that while incarcerated he developed a life-
threatening bacterial infection known as Methicillin-resistant
Staphylococcus aureus (“MRSA”) due to Defendants’
deliberate indifference. The district court granted summary
judgment to Defendants due to Hall's failure to exhaust
available administrative remedies under the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). The district
court also declined to enter a default judgment against
one of the individual Defendants and denied Hall's motion
for reconsideration. On appeal, Hall challenges all three
decisions. We assume the parties’ familiarity with the
underlying facts, procedural history of the case, and issues on
appeal.
We review a grant of summary judgment de novo. Garcia
v. Hartford Police Dep't, 706 F.3d 120, 126 (2d Cir. 2013).
Summary judgment is appropriate only if, after resolving all
ambiguities and drawing all inferences against the moving
party, “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Id. at
126–27 (internal quotation marks omitted) (quoting Fed. R.
Civ. P. 56(a)). We also review de novo a district court's ruling
on whether a plaintiff has exhausted administrative remedies
under the PLRA. See Romano v. Ulrich, 49 F.4th 148, 152–
53 (2d Cir. 2022).
Under the PLRA, a prisoner cannot sue over prison conditions
until he has exhausted all available administrative remedies.
42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 93
(2006). This “exhaustion requirement applies to all inmate
suits about prison life,” Porter v. Nussle, 534 U.S. 516,
532 (2002) (emphasis added), and it is mandatory, see Ross
v. Blake, 578 U.S. 632, 638-39 (2016). Here, the relevant
administrative process is the three-step Inmate Grievance
Program (“IGP”). See 7 N.Y.C.R.R. § 701.1 et seq.; Garcia v.
Heath, 74 F.4th 44, 46 (2d Cir. 2023).
The district court correctly concluded that the IGP was
available to Hall and that his arguments to the contrary are
unavailing. The PLRA's exhaustion requirement applies to
complaints about medical treatment. See Macias v. Zenk, 495
F.3d 37, 43–45 (2d Cir. 2007); see also Napier v. Laurel Cnty.,
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 59 of 75

Hall v. Annucci, Not Reported in Fed. Rptr. (2023)
2023 WL 7212156
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Ky., 636 F.3d 218, 221 (6th Cir. 2011) (applying the PLRA's
exhaustion requirement in the specific context of a MRSA
infection). It is undisputed that Hall never filed a grievance
regarding the allegedly inadequate medical care that led to his
infection. Thus, the only question remaining for us is whether
the IGP was unavailable to Hall. See Appellant's Br. at 5–6.
Prisoners are excused from the exhaustion requirement when
administrative remedies are “unavailable.” Ross, 578 U.S.
at 642. An administrative procedure is unavailable when
(1) “it operates as a simple dead end—with officers unable
or consistently unwilling to provide any relief to aggrieved
inmates”; (2) it is “so opaque that it becomes, practically
speaking, incapable of use”; or (3) “prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id.
at 643–44.
*2 The district court correctly determined that there is no
genuine issue of fact as to whether any exception applies
to Hall's failure to file a grievance related to his medical
treatment. The IGP was not a dead end nor too opaque
for an ordinary prisoner to navigate. In fact, Hall had
previously used the IGP to file several grievances, including
for medical- and health-related issues, that resulted in relief.
Hall alleges that a correctional officer's comment about his
likelihood of dying in prison “thwarted” his attempt to file a
grievance about his medical treatment. But this argument is
meritless because Hall in fact filed a grievance about that very
comment.
Accordingly, the district court correctly granted summary
judgment to Defendants on the issue of exhaustion.
Because that issue is dispositive, we need not separately
address whether the court abused its discretion by denying
reconsideration of its previous denial of Hall's request for a
default judgment. See RSM Prod. Corp. v. Fridman, 387 F.
App'x 72, 75 (2d Cir. 2010) (“Because the action was properly
dismissed as to the appearing defendants, we cannot conclude
that the district court abused its discretion in declining to enter
default judgments against the non-appearing defendants.”).
We note, however, that Hall failed in any event to obtain an
entry of default against the relevant Defendant under Federal
Rule of Civil Procedure 55(a). See Priestley v. Headminder,
Inc., 647 F.3d 497, 504 (2d Cir. 2011) (explaining that
Rule 55 “provides a two-step process for obtaining a default
judgment,” the first of which is “to obtain an entry of
default”). Nor does it appear that the relevant Defendant
was served at the time Hall requested default judgment. See
Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619
F.3d 207, 213 (2d Cir. 2010) (describing that before a court
grants a motion for default judgment, it “may first assure itself
that it has personal jurisdiction over the defendant”).
We have considered Hall's remaining arguments and find
them to be without merit. Accordingly, we AFFIRM the
judgment of the district court.
All Citations
Not Reported in Fed. Rptr., 2023 WL 7212156
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 60 of 75

Hall v. Annucci
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (3)
Title PDF Court Date Type
1. Docket 23-6655
RALPH HALL v. ANTHONY J. ANNUCCI, ET AL.
— U.S. Feb. 05, 2024 Docket
2. Docket 22-2031
Hall v. Annucci
— C.A.2 Sep. 16, 2022 Docket
3. Docket 7:19-CV-05521
Hall v. Annucci et al
— S.D.N.Y. June 12, 2019 Docket
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 61 of 75

Hall v. Annucci
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (8)
Direct History (6)
1. Hall v. Annucci
2022 WL 3903255 , S.D.N.Y. , Aug. 30, 2022
Affirmed by
2. Hall v. Annucci
2023 WL 7212156 , 2nd Cir.(N.Y.) , Nov. 02, 2023
Certiorari Denied by
3. Hall v. Annucci
144 S.Ct. 1107 , U.S. , Mar. 25, 2024
4. Hall v. Annucci
2022 WL 3903255 , S.D.N.Y. , Aug. 30, 2022
Reconsideration Denied by
5. Hall v. Annucci
2024 WL 4556610 , S.D.N.Y. , Oct. 22, 2024
Appeal Dismissed by
6. Hall v. Bentivegna
2025 WL 3439771 , 2nd Cir.(N.Y.) , Sep. 04, 2025
Related References (2)
7. Hall v. Annucci
2021 WL 4392526 , S.D.N.Y. , Sep. 24, 2021
8. Hall v. Annucci
2024 WL 4380313 , 2nd Cir.(N.Y.) , Oct. 03, 2024
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 62 of 75

XL Specialty Ins. Co. v. Otto Naumann, Ltd., Not Reported in F.Supp.3d (2015)
2015 WL 1499208
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2015 WL 1499208
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
XL SPECIALTY INSURANCE COMPANY, Plaintiff,
v.
OTTO NAUMANN, LTD.,
Defendant and Third–Party Plaintiff,
v.
Julius Lowy Frame & Restoring
Co. Inc., Third–Party Defendant.
No. 12–CV–8224 (DAB).
|
Signed March 31, 2015.
MEMORANDUM AND ORDER
DEBORAH A. BATTS, District Judge.
*1 Plaintiff XL Specialty Insurance Company (“XL”) brings
this suit against Defendant Otto Naumann, Ltd. (“Naumann”)
for rescission of an insurance payment made for a missing
painting. The painting was later found in the possession
of Julius Lowy Frame & Restoring Co. Inc. (“Lowy”).
Naumann in turn brings a third-party complaint against Lowy
alleging negligent handling of the painting. XL moved for
judgment on the pleadings against Naumann. That Motion is
DENIED. Lowy moved to dismiss the third-party complaint
by Naumann. That Motion is GRANTED.
I. BACKGROUND
The following facts are based on the respective pleadings. 1
1 Naumann attaches affidavits to its brief, which the
Court will ignore in deciding the Rule 12(c) and
12(b)(6) motions. See Fed.R.Civ.P. 12(d).
A. Allegations of XL's Complaint
Naumann, a fine art dealer in New York, purchased an
insurance policy from XL, a Connecticut insurance company.
(Compl.¶¶ 1–2, Ex. C.) In July 2007, Naumann submitted a
claim to XL for a stolen painting worth $450,000. (Id. Ex.
B.) After investigation, XL paid Naumann $357,500 on the
claim. (Id. ¶¶ 14–15, 23.)
In April 2012, Naumann's insurance broker informed XL
that the painting was found at Lowy, a framing company
located on the same street as Naumann. (Id. ¶¶ 8, 24–25.)
According to XL, back in May 2007, Naumann had delivered
the painting to Lowy for reframing and then lost track of it.
(Id. ¶¶ 9–10.) XL attached to its complaint what appears to
be a receipt from Lowy for Naumann's work order on the
painting. (Id. Ex. A.)
Naumann refused to return the $357,500 to XL. (Id. ¶ 27.)
B. Allegations of Naumann's Third–Party Complaint
Naumann's answer to XL's complaint denied that Naumann
gave the painting to Lowy. (First Amended Answer and
Third Party Complaint (“Answer”) ¶¶ 9–10, Dkt. 16.) In the
same document, however, Naumann asserted a negligence
claim against Third–Party Defendant Lowy that included
allegations that Lowy picked up the painting from Naumann
for reframing. (Id. ¶¶ 42–43.)
According to Naumann, it never received any documentation
from Lowy regarding the restoration. (Id. ¶¶ 49–50.) The
painting “was not in the same condition as when it was last in
Naumann's possession,” and it “no longer has the value it had
when [Lowy] took possession.” (Id. ¶¶ 64–65.)
II. DISCUSSION
A. Standard of Review
“Judgment on the pleadings” under Rule 12(c) is “appropriate
where material facts are undisputed and where a judgment
on the merits is possible merely by considering the contents
of the pleadings.” Sellers v. M.C. Floor Crafters, Inc., 842
F.2d 639, 642 (2d Cir.1988). Accordingly, a 12(c) movant
must establish “that no material issue of fact remains to be
resolved and that [she] is entitled to judgment as a matter of
law.” Juster Assocs. v. City of Rutland, 901 F.2d 266, 269 (2d
Cir.1990) (internal quotation marks omitted).
On a motion to dismiss pursuant to Rule 12(b)(6), the
factual allegations in the complaint are accepted as true, and
all reasonable inferences are drawn in the plaintiff's favor.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d
Cir.2007). The complaint need only include “enough facts to
state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 63 of 75

XL Specialty Ins. Co. v. Otto Naumann, Ltd., Not Reported in F.Supp.3d (2015)
2015 WL 1499208
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
B. Naumann's Inconsistent Pleadings
*2 Naumann has made conflicting assertions of fact with
respect to how Lowy came to possess the painting. In its
answer, Naumann denies that it gave Lowy the painting for
restoration. Yet, in its third-party complaint against Lowy
(part of the same document as the answer), Naumann states
—presumably in order to create a duty in Lowy—that it hired
Lowy to fix the painting. Naumann then clarifies in its brief
that Lowy's obtainment of the painting is disputed and that
Naumann is merely making a conditional allegation: “if in fact
Lowy took possession from Naumann,” then Lowy failed to
handle the painting with care. (Naumann Br. at 6, Dkt. 24.)
Naumann cannot, as the saying goes, have its cake and
eat it too. Although Rule 8(d)(3) allows parties to plead
alternative legal theories, it does not permit “inconsistent
assertions of facts within the allegations.” In re Livent,
Inc. Noteholders Secs. Litig., 151 F.Supp.2d 371, 407
(S.D.N.Y.2001); see also United States v. Gotti, 771 F.Supp.
535, 540 (E.D.N.Y.1991) (“There is a significant difference
between pleading alternative theories of law based upon given
facts and pleading alternative statements of fact to support a
given principle of law.”).
Naumann has made clear that it disputes XL's account of
Lowy's attainment of the painting. The Motions before the
Court will be evaluated in light of that contention.
C. XL's Rule 12(c) Motion for Judgment on the Pleadings
XL argues that it is entitled to rescission of the insurance
money paid to Naumann because the payout was based on a
mutually mistaken understanding that the painting was stolen.
This argument is premised on Naumann admitting to giving
the painting to Lowy, which Naumann does not. Nor does XL
suggest that the purported receipt attached to the complaint
by itself establishes how the painting arrived at Lowy. That
dispute creates a question of fact, and the rescission claim will
continue.
XL next asserts a claim for negligent misrepresentation,
which requires that Naumann made a false statement. See,
e.g., Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d
8, 20 (2d Cir.2000). XL submits that Naumann falsely told
XL that the painting was stolen. Again, there is a question of
fact as to the falsity of that statement.
Finally, XL asks for a finding that Naumann was unjustly
enriched, which requires a showing that equity militates
against the defendant retaining the property in question. See,
e.g., Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373
F.3d 296, 306 (2d Cir.2004). Given the dispute over Lowy's
attainment of the painting, the Court cannot conclude, based
on the pleadings alone, that it would be inequitable for
Naumann to keep the insurance money.
D. Lowy's 12(b)(6) Motion To Dismiss The Third–Party
Complaint
Naumann seeks to hold Lowy liable for negligent handling
of the painting. To bring a negligence claim, Naumann must
establish that Lowy owed a “duty” to Naumann. Alfaro v.
Wal–Mart Stores, Inc., 210 F.3d 111, 114 (2d Cir.2000). As the
Court previously stated in dismissing Naumann's initial third-
party complaint against Lowy, “[i]t is plausible that a duty
would arise when the owner of a painting takes it to a shop to
be restored.” Opinion, Mar. 28, 2014, Dkt. 15 at 6. Naumann's
initial third-party complaint against Lowy did not, however,
allege that Naumann hired Lowy to restore the painting. Id.
Accordingly, no duty arose in Lowy based on that pleading.
Id. 2
2 Nor had Naumann alleged any injury to the
painting. Rather, Naumann indicated only that the
painting was “not in the same condition as when it
was last in Naumann's possession.” Dkt. 15 at 7.
*3 Similarly, Naumann has not properly made any such
allegation in its amended third-party complaint. Naumann's
decision to dispute how Lowy obtained the painting means
Naumann has not alleged a duty in Lowy. The negligence
claim against Third–Party Defendant Lowy once again fails.
III. CONCLUSION
There is a disputed issue of fact as to how Lowy came to
possess the painting in question. Given that circumstance,
XL's Motion for Judgment on the Pleadings is DENIED.
In the absence of allegations that create a duty in Lowy
to Naumann, Lowy's Motion to Dismiss the Third–Party
Complaint is GRANTED. On the facts claimed by Third–
Party Plaintiff Naumann, leave to replead would be futile, so
the dismissal is WITH PREJUDICE.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 64 of 75

XL Specialty Ins. Co. v. Otto Naumann, Ltd., Not Reported in F.Supp.3d (2015)
2015 WL 1499208
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
The remaining Parties are to appear for a Rule 16 Conference
on April 16, 2015 at 10:30 AM.
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2015 WL 1499208
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 65 of 75

XL Specialty Ins. Co. v. Otto Naumann, Ltd.
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Filings (7)
Title PDF Court Date Type
1. Memorandum of Law in Opposition to Plaintiff's
Motion for Summary Judgment
XL SPECIALTY INSURANCE COMPANY, Plaintiff, v.
OTTO NAUMANN, LTD., Defendant.
2017 WL 4100459
— S.D.N.Y. Mar. 01, 2017 Motion
2. Reply Memorandum of Law in Further Support of
Plaintiff XL Specialty Insurance Company's Motion for
Judgment on the Pleadings and Third-Party Defendant
Julius Lowy Frame & Restoring Co. Inc.'s Motion to
Dismiss the Third-Party Complaint with Prejudice
XL SPECIALTY INSURANCE COMPANY, Plaintiff, v.
OTTO NAUMANN, LTD., Defendant and Third-Party
Plaintiff, v. Julius Lowy Frame & Restoring Co. Inc., Third-
Party Defendant.
2014 WL 10296168
— S.D.N.Y. Aug. 22, 2014 Motion
3. Memorandum of Law in Opposition to Plaintiff XL
Specialty Insurance Company's Motion for Summary
Judgment on the Pleadings and Third-Party Defendant
Julius Lowy Frame & Restoring Co. Inc.'s Motion to
Dismiss the Third-Party Complaint with Prejudice
XL SPECIALTY INSURANCE COMPANY, Plaintiff, v.
OTTO NAUMANN, LTD., Defendant and Third-Party
Plaintiff, v. Julius Lowy Frame & Restoring Co. Inc., Third-
Party Defendant.
2014 WL 10296150
— S.D.N.Y. July 21, 2014 Motion
4. Third-Party Defendant Julius Lowy Frame &
Restoring Co. Inc.'s Reply Memorandum of Law in
Further Support of Its Motion to Dismiss the Third-
Party Complaint
XL SPECIALTY INSURANCE COMPANY, Plaintiff, v.
OTTO NAUMANN, LTD., Defendant and Third-Party
Plaintiff, v. Julius Lowy Frame & Restoring Co. Inc., Third-
Party Defendant.
2013 WL 6417742
S.D.N.Y. June 21, 2013 Motion
5. Third-Party Defendant Julius Lowy Frame &
Restoring Co. Inc.'s Memorandum of Law in Support
of Its Motion to Dismiss the Third-Party Complaint
XL SPECIALTY INSURANCE COMPANY, Plaintiff, v.
OTTO NAUMANN, LTD., Defendant and Third-Party
Plaintiff, v. Julius Lowy Frame & Resotring Co. Inc., Third-
Party Defendant.
2013 WL 6417935
S.D.N.Y. May 01, 2013 Motion
6. Joint Stipulation of Dismissal with Prejudice under
FRCP 41
XL SPECIALTY INSURANCE CO., Plaintiff, v. OTTO
NAUMANN, LTD., Defendant.
2019 WL 6001245
— S.D.N.Y. June 03, 2019 Jury Verdict
7. Docket 1:12-CV-08224
XL Specialty Insurance Company v. Otto Naumann, LTD.
— S.D.N.Y. Nov. 13, 2012 Docket
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 66 of 75

XL Specialty Ins. Co. v. Otto Naumann, Ltd.
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
History (3)
Direct History (1)
1. XL Specialty Ins. Co. v. Otto Naumann, Ltd.
2015 WL 1499208 , S.D.N.Y. , Mar. 31, 2015
Related References (2)
2. XL Specialty Insurance Co. v. Otto Naumann, Ltd.
2014 WL 13111414 , S.D.N.Y. , Mar. 28, 2014
3. XL Specialty Insurance Company v. Otto Naumann, Ltd.
2019 WL 13506175 , S.D.N.Y. , Apr. 18, 2019
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 67 of 75

XL Specialty Ins. Co. v. Otto Naumann, Ltd.
© 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 68 of 75

Johnson v. New York City Dept. of Correction, Not Reported in F.Supp.3d (2014)
2014 WL 2800753
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Galberth v. Washington, S.D.N.Y., March 29, 2016
2014 WL 2800753
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Glenn JOHNSON, Plaintiff,
v.
NEW YORK CITY DEPARTMENT OF
CORRECTION, Deputy Warden Lewis, Captain Levy,
Co. Simpson, and Intake Officer Pepe, Defendants.
No. 13 Civ. 6799(CM).
|
Signed June 16, 2014.
MEMORANDUM DECISION AND ORDER
GRANTING DEFENDANTS' MOTION TO DISMISS
McMAHON, District Judge.
*1 Pro se plaintiff Glenn Johnson (“Plaintiff”) initiated
this action on September 24, 2013, by filing a complaint
against the New York City Department of Corrections
(“DOC”), Deputy Warden Lewis, Captain Levy, Corrections
Officer Simpson, and Corrections Officer Pepe (collectively,
“Defendants”) 1 pursuant to 42 U.S.C. § 1983. Plaintiff
alleges that he was subject to unconstitutional conditions of
confinement while he was detained at the Anna M. Kross
Center (“AMKC”) at Rikers Island.
1 Some of these defendants were initially listed as
“John Does.” Plaintiff added their names in his
Amended Complaint filed on January 21, 2014.
Defendants now move to dismiss Plaintiff's Amended
Complaint (“Complaint”), on the grounds that Plaintiff (1)
fails to assert a constitutional violation; (2) fails to allege the
existence of any unconstitutional municipal policy or custom;
and (3) failed to exhaust his available administrative remedies
as required by the Prison Litigation Reform Act, 42 U.S.C.
§ 1997(e)(a) ( “PLRA”). For the reasons set forth herein,
Defendants' motion is GRANTED.
BACKGROUND
In the Complaint, Plaintiff alleges that he was brought to
AMKC (a DOC facility) as a new admission “on or about”
July 25, 2013 at 11:00 pm and was placed in the intake area.
Compl. § II.C. Plaintiff alleges that he was then held in the
intake area for five days, during which time he slept on the
floor or on a bench. See id. §§ II.C, V. As a result, Plaintiff
alleges that he suffers from back and neck pain for which he
takes medication. See id. §§ II.C, III. Plaintiff also alleges that
he did not have access to a shower while he was being held
at intake. See id. § II.C.
Due to these events, Plaintiff asserts a cause of action under
§ 1983 for “cruel and unusual punishment” in violation of the
Eighth Amendment. Id. § V.
With respect to exhausting his administrative remedies,
Plaintiff alleges that he placed a grievance “in the drop box
for the grievance committee in the Anna M. Kross Center (C–
95) sometime in July of 2013.” Docket No. 26 (“Pl.Opp.”) at
1. He asserts that he “did not get an answer from them for
the [whole] month” that he was held at AMKC. Compl. at §
IV.F.1. Plaintiff admits that he did not make any attempts to
appeal his grievance. See id. § IV.E.3.
Plaintiff alleges that he was transferred to the Eric M. Taylor
Center (“EMTC”) at Rikers Island a month after he filed his
grievance in July 2013. He asserts that he was released from
EMTC in September 2013. See Pl. Opp. at 1.
The documentary evidence submitted by Plaintiff contradicts
his assertion that he filed a grievance in July 2013. The
grievance form attached to the Complaint is dated September
14, 2013, and it states that Plaintiff was housed at EMTC at the
time of filing. Plaintiff does not offer any explanation for this
discrepancy. The grievance form includes an explanation of
the five steps of the Inmate Grievance and Request Program
(“IGRP”), the administrative process by which inmates can
submit complaints relating to prison conditions.
*2 Defendants filed a motion to dismiss the Complaint on
March 31, 2014. Thereafter, Plaintiff did not file any timely
opposition to the motion. On May 30, 2014, the Court held a
telephone conference with the parties. During that conference,
the Court directed Plaintiff to respond to the Defendants'
motion to dismiss and to explain why he was unable to
exhaust his administrative remedies. See ECF Entry dated
Case 9:22-cv-01178-DNH-MJK Document 140 Filed 02/17/26 Page 69 of 75

Johnson v. New York City Dept. of Correction, Not Reported in F.Supp.3d (2014)
2014 WL 2800753
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
May 30, 2014. Plaintiff thereafter submitted a letter to the
Court dated June 1, 2014, opposing the Defendants' motion
to dismiss (“Opposition”).
In the Opposition, Plaintiff explained his failure to exhaust his
administrative remedies as follows: “Once I was released, I
did not know that I could follow-up a grievance request in the
City of New York or refile the request when moved to another
facility on Riker's Island.” PL Opp. at 1.
DISCUSSION
I. Standard of Review
In deciding a motion to dismiss pursuant to Rule 12(b)
(6), the Court must liberally construe all claims, accept all
factual allegations in the complaint as true, and draw all
reasonable inferences in favor of the plaintiff. See Cargo
Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir.2003);
see also Roth v. Jennings, 489 F.3d 499, 510 (2d Cir.2007).
To survive a motion to dismiss, “a complaint must contain
sufficient factual matter ... to ‘state a claim to relief that is
plausible on its face.’ “ Ashcroft v. Iqbal, 556 U.S. 662, 129
S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. (citing Twombly, 550 U.S.
at 556). “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his entitlement
to relief requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555 (internal quotations,
citations, and alterations omitted). Unless a plaintiff's well-
pleaded allegations have “nudged [its] claims across the line
from conceivable to plausible,” the plaintiff's complaint must
be dismissed. See id. at 570; Iqbal, 129 S.Ct. at 1950–51.
“A document filed pro se is to be liberally construed, and a
pro se complaint, however inartfully pleaded, must be held
to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429
U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). A court
must interpret pro se filings “to raise the strongest arguments
that they suggest.” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d. Cir.2006). However, dismissal of a pro
se complaint is appropriate where the plaintiff has “clearly
failed to meet minimum pleading requirements. Brown v. City
of New York, 2010 U.S. Dist. LEXIS 94947, at *7, 2010 WL
3565171 (S.D.N.Y. Mar. 2, 2010).
II. Plaintiff Failed to Exhaust His Administrative
Remedies.
*3 The Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(a), states: “No action shall be brought with respect
to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.” The purpose of the PLRA is
to “reduce the quantity and improve the quality” of prisoner
suits, and to afford corrections officials the opportunity to
address problems internally before resorting to the federal
judicial process. Abney v. McGinnis, 380 F.3d 663, 667 (2d
Cir.2004).
The exhaustion requirement applies to “all prisoners seeking
redress for any prison circumstances or occurrences,” whether
it was a particular episode or an ongoing circumstance.
Porter v. Nussle, 534 U.S. 516, 519, 122 S.Ct. 983, 152
L.Ed.2d 12 (2002). Under § 1997e(a), all available remedies
must be exhausted. The remedies do not need to meet
any federal standards nor must they be “plain, speedy,
and effective.” Id. at 524. A prisoner cannot satisfy the
PLRA's exhaustion requirement by filing an untimely or
administratively defective grievance or appeal. See Woodford
v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368
(2006). The Second Circuit “does not excuse a failure to
exhaust when an inmate/plaintiff admittedly did not appeal
to the highest available level of administrative review and
provides no justifiable explanation for his failure to do so.”
George v. Morrison, No. 06 Civ. 3188(SAS), 2007 WL
1686321, at *4 (S.D.N.Y. June 11, 2007) (citing Berry v.
Kerik, 366 F.3d 85, 88 (2d Cir.2004)).
A plaintiff is not required to plead exhaustion; rather, it is an
affirmative defense for which the defendant bears the burden
of proof. See Jones v. Bock, 549 U.S. 199, 212, 127 S.Ct.
910, 166 L.Ed.2d 798 (2007). However, if it is clear from the
face of the complaint that the plaintiff failed to exhaust his
administrative remedies, a motion to dismiss pursuant to Rule
12(b)(6) for failure to exhaust should be granted. See Stevens
v. City of New York, 2012 U.S. Dist. LEXIS 150227, at *6,
2012 WL 4948051 (S.D.N.Y. Oct. 11,2012).
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Because it is apparent from the Complaint that Plaintiff failed
to exhaust his administrative remedies by following the steps
of the Inmate Grievance and Request Program (“IGRP”), 2
his Complaint must be dismissed.
2 New York City Department of Corrections,
Directive 3376, effective September 10, 2012. See
Docket No. 22, Ex. A (“IGRP Directive 3376”).
The Court takes judicial notice of the IGRP, as
courts in this circuit routinely do. See, e.g., Myers
v. City of New York, 11 Civ. 8525(PAE), 2012 WL
3776707, at *4 n. 6 (S.D.N.Y. Aug. 29, 2012).
Pursuant to the IGRP, an aggrieved inmate must follow
a five-step review process for all complaints: (1) filing
a grievance with the IGRP staff within ten days of the
date of the alleged incident; (2) informal resolution of the
complaint by IGRP staff; (3) if an informal resolution is not
reached within five days, requesting a formal hearing before
the Inmate Grievance Resolution Committee (“IGRC”);
(4) appealing the IGRC's decision to the Commanding
Officer; (4) appealing the Commanding Officer's decision to
the Central Office Review Committee (“CORC”); and (5)
appealing the CORC's decision to the New York City Board of
Correction (“BOC”). See IGRP Directive 3376 at § II; White
v. Dep't of Corrs., No. 11 Civ. 9254(TPG), 2013 WL 1209567,
at *2 (S.D.N.Y. Mar.21, 2013).
*4 The IGRP provides specific time frames for each step
in the grievance process. If an inmate does not receive a
response within these specified time frames, he must appeal
to the next level of the process in order to properly exhaust
his administrative remedies. See Gantt v. Horn, No. 09 Civ.
7310(PAE), 2013 WL 865844, at *6 (S.D.N.Y. Mar.8, 2013).
It is well settled that an inmate must complete all requisite
steps of the IGRP in order to fully exhaust his administrative
remedies; even if he does not receive a response at a particular
step in the proceedings, he must proceed in timely fashion
to the next step. See, e.g., Salvatierra v. Connolly, No. 09
Civ. 3722(SHS) (DF), 2010 WL 5480756, at *17 (S.D.N.Y.
Sept. 1, 2010) (collecting cases), report and recommendation
adopted, No. 09 Civ. 3722(SHS), 2011 WL 9398 (S.D.N.Y.
Jan.3, 2011).
A. Plaintiff Did Not Follow All Five Steps of the IGRP
Process .
Plaintiff concedes that he did not follow the five steps of
the IGRP process prior to filing his Complaint with this
Court. He alleges that he filed an initial grievance about the
circumstances of his admission to AMKC in either July or
September 2013, and that he received “no response” for an
entire month. Pl. Opp. at 1. Plaintiff admits that he did not
request a formal hearing before the IGRC or appeal to the
Commanding Officer, the CORC, or the BOC. See Compl. §
IV.E.3.
It appears that Plaintiff may have failed to properly perform
the first step of the IGRP process-filing a grievance within ten
days of the incident in question. Plaintiff alleges that he was
admitted to AMKC “on or about” July 25, 2013 and held at
intake for five days without a bed or shower. Compl. § II.C.
In his Opposition, Plaintiff alleges that he filed a grievance
sometime in July 2013, which would have been within ten
days of the incident.
However, the copy of the grievance that Plaintiff claims to
have filed-which he provided to the Court-suggests otherwise.
A court “is not required to accept as true allegations
that are contradicted by documentary evidence that may
be considered on a motion to dismiss.” Vtech Holdings
Ltd. v. PriceWaterhouseCoopers LLP, 348 F.Supp.2d 255,
263 (S.D.N.Y.2004). The grievance form attached to the
Complaint is dated September 14, 2013, well over ten days
after the July 2013 incident. Accordingly, the documentary
evidence submitted by the Plaintiff himself suggests that he
failed to file his grievance within ten days of the incident.
Even accepting Plaintiff's alternative allegation that he
submitted a timely initial grievance in July 2013, the Plaintiff
failed to exhaust his administrative remedies. The IGRP
is a five-step process. After the first step of submitting a
grievance, the IGRP states that an aggrieved inmate must
request a formal hearing and then pursue three levels of
appeals. Plaintiff concedes that he did not fulfill these four
steps of the IGRP at all, let alone in a timely fashion. Thus,
Plaintiff failed to exhaust his administrative remedies.
B. Plaintiff is Not Excused from Exhaustion.
*5 In certain situations, an inmate may be excused from
the PLRA's exhaustion requirement. In determining whether a
plaintiff is excused from exhaustion, the court must undertake
a three-part inquiry. See Hemphill v. City of New York, 380
F.3d 680, 686 (2d Cir.2004). An inmate may be excused
from the exhaustion requirement if: (1) the administrative
remedies were not in fact available; (2) the defendants' actions
inhibited exhaustion and they are therefore estopped from
arguing non-exhaustion; or (3) “special circumstances” exist
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(e.g., an inmate reasonably misunderstood the requirements
of the grievance procedures). Id.
Plaintiff does not explicitly argue that he should be excused
from exhausting his administrative remedies. However, he
states in his Opposition letter: “Once I was released, I did
not know that I could follow-up a grievance request in the
City of New York or refile the request when moved to
another facility on Riker's Island.” Pl. Opp. at 1. Construing
Plaintiff's Opposition liberally, he raises two possible grounds
for excuse: (1) Plaintiff was transferred to a different facility,
or (2) Plaintiff was released from DOC custody. These
arguments fail.
First, courts have in some cases found that an administrative
remedy may properly be considered “unavailable” where
an inmate is transferred shortly after the incident at
issue and cannot pursue his complaint thereafter due to
different grievance procedures. See Hartry v. Cnty. of
Suffolk, 755 F.Supp.2d 422, 433 (E.D.N.Y.2010) (collecting
cases). Plaintiff alleges that he was transferred from AMKC
to EMTC, another DOC facility on Rikers Island. His
documentary evidence supports his claim; the untimely
grievance that he claims to have filed (which is dated
September 14, 2013) indicates that he was housed at EMTC
at that time.
However, “a transfer between New York City-run facilities
does not excuse the requirement to exhaust, because the
grievance procedures are the same throughout all facilities.”
Smith v. City of New York, No. 12 Civ. 3303, 2013 WL
5434144, at *17 (S.D.N .Y. Sept. 26, 2013). Both the AMKC
and EMTC facilities are located on Rikers Island, and both
utilize the same grievance process-the IGRP. Accordingly,
Plaintiff is not excused from exhaustion on the basis of
his transfer to EMTC; he could have easily pursued his
administrative remedies while housed at any Rikers facility.
Second, Plaintiff alleges that he did not know that he
could “follow-up a grievance request” after he was released
from DOC custody in September 2013. Pl. Opp. at 1.
However, a prisoner is not excused from the PLRA's
exhaustion requirement where he files a grievance while in
custody and has the opportunity to exhaust his administrative
remedies prior to his release or during subsequent periods of
confinement. See Berry, 366 F.3d at 88.
IGRP Directive 3376 states that an inmate has up to ten
business days after an incident to file a grievance. IGRP
staff members then have five business days to respond to
the initial grievance. Thereafter, the inmate has five business
days to proceed to the next step of the IGRP-requesting a
formal hearing before the IGRC. Accordingly, within ten
business days of filing the grievance form, Plaintiff should
have requested a formal hearing.
*6 Plaintiff alleges that the incident took place from July
25 to July 30, 2013. Assuming that Plaintiff filed a timely
grievance (which he could have filed at any time up to August
13, 2013) and received no response within five business days
(August 20, 2013), Plaintiff, who was still housed at Rikers
Island, could have taken the next step and requested a hearing.
He had five business days to do so-or until August 27, 2013.
He concedes that he made no effort to seek a formal hearing;
he was not released until after September 14, 2013. Thus,
Plaintiff's release from custody did not render the grievance
process “unavailable” to him; he simply failed to exhaust this
administrative remedy. 3
3 Plaintiff seems to have spent much of 2013 and
2014 on Rikers Island. Plaintiff's grievance form
indicates that he was still held at EMTC on
September 14, 2013. Plaintiff may have been
released briefly, but his original complaint in this
action-which was filed on September 24, 2013–
indicates that he was located at AMKC at that time.
The Amended Complaint-which is dated January
21, 2014–likewise notes that Plaintiff was housed
at AMKC. Indeed, Plaintiff is in DOC custody
today. He filed a change of address form with this
Court on March 25, 2014 stating that he had moved
from the Bronx to the George Motchan Detention
Center at Rikers; his letter dated June 1, 2014 stated
that he was still there. Plaintiff's apparently brief
period of freedom in mid-September 2013 did not
end his relationship with the jail or his access to the
1GRP process. In any case, it does not matter that
Plaintiff had access to the grievance process during
his subsequent periods of confinement, since he
had plenty of time to pursue his grievance prior to
his release in mid-September 2013.
The Court also notes that Plaintiff submitted medical records
indicating that he suffers from schizophrenia. See Compl.
at 9. This might raise the question of whether there were
“special circumstances” excusing Plaintiff's failure to exhaust
his administrative remedies. Hemphill, 380 F.3d at 686.
However, in the absence of factual allegations showing that a
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plaintiff was “physically or mentally unable to comply with
the grievance process,” a health problem does not excuse a
plaintiff from exhaustion. Bennett v. James, 737 F.Supp.2d
219, 227–28 (S.D.N.Y.2010), aff'd, 441 Fed. App'x 816 (2d
Cir.2011).
Other courts facing complaints brought by schizophrenic
inmates have declined to excuse the PLRA's exhaustion
requirement, although aware of the plaintiff's diagnosis.
See Taylor v. Hen derson, No. 11 Civ. 351 (RGK/DTB),
2012 WL 6838947, at *5–6 (C.D.Cal. Aug.28, 2012), report
and recommendation adopted, No. 11 Civ. 351 (RGK/
DTB), 2013 WL 139203 (C.D.Cal. Jan.9, 2013); Helmer v.
Herkimer Cnty. Jail Adm'r, No. 09 Civ. 542 (LEK/DRH),
2011 WL 978939, at *6 (N.D.N.Y. Feb.25, 2011), report and
recommendation adopted, No. 09 Civ. 542 (LEK/DRH), 2011
WL 971471 (N.D.N.Y. Mar.17, 2011); Braswell v. Corrs.
Corp. of America, No. 08 Civ. 691, 2009 WL 2447614, *11
(M.D.Tenn. Aug. 10, 2009).
Here, Plaintiff has not alleged that his schizophrenia
interfered with his ability to utilize the IGRP grievance
process, and no facts in the record indicate that in July
and August 2013—when Plaintiff should have been pursuing
the various steps in the IGRP–Plaintiff's schizophrenia
rendered him unable to file an initial grievance, to request
a formal hearing, or to submit an appeal. Indeed, Plaintiff's
correspondence with this Court throughout the last year has
demonstrated that he is perfectly capable of filing simple
forms like those involved in the IGRP process.
As Plaintiff has offered no basis upon which this Court may
excuse his failure to exhaust his administrative remedies, I
grant the Defendants' motion to dismiss.
Because Plaintiff failed to exhaust his administrative
remedies, this Court need not address the Defendants' other
arguments in support of their motion to dismiss.
CONCLUSION
For the foregoing reasons, the Defendants' motion to dismiss
is GRANTED. The Clerk of the Court is directed close out
the motion at Docket No. 20, to remove same from the Court's
list of pending motions, and to close the file.
All Citations
Not Reported in F.Supp.3d, 2014 WL 2800753
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Johnson v. New York City Dept. of Correction
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Filings (1)
Title PDF Court Date Type
1. Docket 1:13cv06799
JOHNSON ET AL v. DOE ET AL
— S.D.N.Y. Sep. 25, 2013 Docket
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Johnson v. New York City Dept. of Correction
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History
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