Dimitri v. Superintendent et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
ROBERT DIMITRI,
Plaintiff,
v.
9:24-CV-0273
ERIC VELIE, et al., 	(AMN/PJE)
Defendants.
_____________________________________
APPEARANCES: 	OF COUNSEL:
ROBERT DIMITRI
22-B-2482
Attica Correctional Facility
P.O. Box 149
Attica, New York 14011
Plaintiff pro se
New York State Attorney General 	CHI-HSIN ESTHER ENGELHART, ESQ.
The Capitol
Albany, New York 12224
Attorneys for defendants
PAUL J. EVANGELISTA
U.S. Magistrate Judge
REPORT-RECOMMENDATION & ORDER1
I. Background
Plaintiff pro se Dimitri Robert (“plaintiff”),2 an individual who, at all relevant times was
incarcerated at Great Meadow Correctional Facility, commenced this civil rights action
1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28
U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c).
2 Plaintiff signed his name as “Dimitri Robert” in his original complaint. Dkt. No. 1 at 1-2. However, other
case materials refer to plaintiff as “Robert Dimitri[.]” Dkt. Nos. 8, 34. As such, the Court will refer to
plaintiff as “Dimitri Robert” rather than “Robert Dimitri[.]”
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by filing a complaint on February 26, 2024, pursuant to 42 U.S.C. § 1983, and an
amended complaint on September 30, 2024.3 See generally Dkt. Nos. 1 (“Compl”); 17
(“Am. Compl.”). Presently before the undersigned are defendants’ Motion to Dismiss
and Motion for Summary Judgment seeking “pursuant to Rule 56 of the Federal Rules
of Civil Procedure . . . an order granting their motion for summary judgment and
dismissing with prejudice all claims against Defendants Butler and Velie” and “an order
granting their motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
dismissing Plaintiff’s Amended Complaint.”4 Dkt. No. 37. Plaintiff opposes. See Dkt.
No. 39. Defendants replied. See Dkt. No. 42
II. Legal Standards5
A. Summary Judgment
Fed. R. Civ. P. 56 instructs courts to grant summary judgment if “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV . P. 56(a). A fact is “material” if it “might affect the outcome of
the suit under the governing law,” and a dispute is “genuine” if “the evidence is such that
a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes that are irrelevant
or unnecessary” will not preclude summary judgment, summary judgment cannot be
granted if “the evidence is such that a reasonable jury could return a verdict for the
3 Plaintiff has filed other actions in this District. See 9:24-CV-01236 (FJS/PJE), Dimitri v. George, et al.
(dismissed); 9:24-CV-01415 (GTS/MJK), Dimitri v. Ohara (dismissed).
4 Defendants request, should this Court not grant summary judgment, defense counsel be given the
opportunity “to depose Plaintiff on the limited issue of exhaustion followed by an evidentiary hearing
pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011).
5 Unless otherwise noted, the Court has provided plaintiff with copies of any unpublished cases cited
within this Report-Recommendation & Order.
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nonmoving party.” Id.; see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991)
(“Only when no reasonable trier of fact could find in favor of the nonmoving party should
summary judgment be granted.”). The party seeking summary judgment bears the
burden of informing a court of the basis for its motion and identifying those portions of
the record that the moving party claims will demonstrate the absence of a genuine
dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
After the moving party has met its initial burden, the nonmoving party “must do
more than simply show that there is some metaphysical doubt as to the material facts”
to defeat summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The nonmoving party may not rely on “mere conclusory
allegations, speculation, or conjecture,” Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir.
2020), and must present more than a mere “scintilla of evidence” to support its claims,
Anderson, 477 U.S. at 252. At the same time, a court must resolve all ambiguities and
draw all inferences in favor of the nonmoving party. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S 133, 150 (2000). The Court “may not make any
credibility determinations or weigh the evidence.” Id. Thus, a court's duty in reviewing a
motion for summary judgment is “carefully limited to discerning whether there are any
genuine issues of material fact to be tried, not to deciding them.” Gallo v. Prudential
Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
Where, as here, a plaintiff proceeds pro se, the court must grant him “special
solicitude,” construe his submissions “liberally,” and read such submissions “to raise the
strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 477 (2d Cir. 2006) (internal quotation marks omitted) (citing Ruotolo v. I.R.S., 28
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F.3d 6, 8 (2d Cir. 1994)). This is because “a pro se litigant generally lacks both legal
training and experience and, accordingly, is likely to forfeit important rights through
inadvertence if [ ] not afforded some degree of protection.” Tracy v. Freshwater, 623
F.3d 90, 101 (2d Cir. 2010) (citing Triestman, 470 F.3d at 475). However, the Second
Circuit has cautioned district courts that they “cannot read into pro se submissions
claims that are not consistent with the pro se litigant's allegations or arguments that the
submissions themselves do not suggest.” Triestman, 470 F.3d at 477 (citations
omitted). Further, the “special solicitude” standard does not excuse “frivolous or
vexatious filings by pro se litigants,” nor does it “exempt a party from compliance with
relevant rules of procedural and substantive law.” Id.
B. Motion to Dismiss
Under Fed. R. Civ. P. 12(b)(6), a defendant may move to dismiss a complaint for
a plaintiff's “failure to state a claim upon which relief can be granted.” When considering
such a motion, a court must “construe plaintiff[’s] complaint liberally, accepting all
factual allegations in the complaint as true, and drawing all reasonable inferences in
plaintiff[’s] favor.” Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009)
(quoting Holmes v. Grubman, 568 F.3d 326, 335 (2d Cir. 2009)) (internal quotation
marks omitted). However, this “tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009)) (internal quotation marks and alterations
omitted).
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Accordingly, to survive a motion to dismiss, a complaint must “‘state a claim for
relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007) (explaining that the plausibility test “does not
impose a probability requirement . . . it simply calls for enough fact[s] to raise a
reasonable expectation that discovery will reveal evidence of illegal [conduct].”)); see
also Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009) (holding that “[o]n a motion to
dismiss, courts require enough facts to state a claim to relief that is plausible . . . .”)
(internal citations omitted). Determining whether plausibility exists is “a context-specific
task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
Where, as here, a party seeks judgment against a pro se litigant, a court must
afford the non-movant special solicitude. See Treistman v. Fed. Bureau of Prisons, 470
F.3d 471, 477 (2d Cir. 2006). As the Second Circuit stated,
[t]here are many cases in which we have said that a pro se litigant is
entitled to special solicitude, that a pro se litigant's submissions must be
construed liberally, and that such submissions must be read to raise the
strongest arguments that they suggest. At the same time, our cases have
also indicated that we cannot read into pro se submissions claims that are
not consistent with the pro se litigant's allegations, or arguments that the
submissions themselves do not suggest, that we should not excuse
frivolous or vexatious filings by pro se litigants, and that pro se status does
not exempt a party from compliance with relevant rules of procedural and
substantive law . . . .
Id. (internal quotation marks, citations, and footnote omitted); see also Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (“On occasions too numerous to
count, we have reminded district courts that when [a] plaintiff proceeds pro se . . . a
court is obligated to construe his pleadings liberally.” (internal quotation marks and
citations omitted)).
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C. N.D.N.Y. Local Rule 56.1
N.D.N.Y. Local Rule 56.1 requires a party moving for summary judgment to file
and serve a Statement of Material Facts “set[ting] forth, in numbered paragraphs, a
short and concise statement of each material fact about which the moving party
contends there exists no genuine issue.” N.D.N.Y. L.R. 56.1(a). Where the opposing
party is incarcerated and proceeding pro se, the moving party is additionally required to
notify the opposing party of the possible consequences for failing to respond to the
motion. See Champion v. Artuz, 76 F.3d 483, 486 (2d. Cir. 1996). The opposing party
must then file a statement “admitting and/or denying each of the movant’s assertions in
matching numbered paragraphs.” N.D.N.Y. L.R. 56.1(b). Each fact listed in the parties’
statements must “set forth a specific citation to the record where the fact is established.”
Id.
Where a pro se litigant fails to respond to the movant’s statement of material
facts, and the pro se litigant has been notified of the possible consequences for failing
to respond, the facts may be deemed true to the extent that they are supported by
evidence on the record. See N.D.N.Y. L.R. 56.1(b) (“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.”). Similarly, “in this District, where a non-movant
has willfully failed to respond to a movant’s properly filed and facially meritorious
memorandum of law, the non-movant is deemed to have ‘consented’ to the legal
arguments contained in that memorandum under Local Rule 56.1(b).” Sullivan, 2021
WL 1294595, at *10. “Stated another way, when a non-movant fails to oppose a legal
argument asserted by a movant, the movant may succeed on the argument by showing
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that the argument possess [sic] facial merit, which has appropriately been characterized
as a ‘modest’ burden.” Id. at 10 (citing N.D.N.Y. L.R. 7.1(a)(3); then citing Rusyniak v.
Gensini, No. 07-CV-0279 (GTS/GHL), 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30,
2009) (collecting cases); and then citing Este-Green v. Astrue, No. 09-CV-0722
(GTS/GHL), 2009 WL 2473509, at *2, n.3 (N.D.N.Y. Aug. 7, 2009) (collecting cases)).
III. Facts
In response to defendants’ Motion to Dismiss and Motion for Summary
Judgment, plaintiff submitted opposition papers. However, plaintiff did not properly
respond to defendants’ statement of material facts. See N.D.N.Y. L.R. 56.1 (“The
opposing party shall file a separate Response to the Statement of Material Facts. The
opposing party’s response shall mirror the movant's Statement of Material Facts by
admitting and/or denying each of the movant’s assertions in a short and concise
statement, in matching numbered paragraphs. Each denial shall set forth a specific
citation to the record where the factual issue arises.”).
From May 11, 2024, to December 19, 2023, plaintiff was incarcerated at Great
Meadow. See Dkt. No. 34-6 at 1. Plaintiff contends, as relevant here, that on
September 16, 2023, defendant Butler wrapped his hands around plaintiff’s waist,
picked him up off of his feet and slammed him into the floor, resulting in plaintiff
suffering a broken and bloody nose, bruises, and two lost teeth. See Compl. at 9, 12.
Plaintiff further contends, on September 17, 2023, defendant Velie, along with a number
of nonparty corrections officers, rushed into plaintiff’s cell and “beat” him, causing
plaintiff to sustain a “permanent scar” above his right eye. Compl. at 9, 17.
IV. Discussion
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A. Motion to Dismiss
1. Threshold Issue
On May 10, 2024, Judge Nardacci granted plaintiff’s in forma pauperis
application and reviewed plaintiff’s Original Complaint pursuant to 28 U.S.C. §§
1915(e)(2)(B), 1915A. See Dkt. No. 20 at 2. Along with the Original Complaint, plaintiff
submitted twenty-seven exhibits and a twenty-seventh exhibit submitted on April 10,
2024. See Dkt. Nos. 1, 7.
In an August 14, 2024, Decision & Order, the Court addressed two submissions
plaintiff filed on June 3, 2024, and June 12, 2024, which plaintiff labeled as “Amended
Complaint” (dkt. no. 11) and “Documents Relevant to the Case” (dkt. no. 12). See Dkt.
No. 13. The Court noted that docket number 11 was “not in compliance with N.D.N.Y.
Local Rule 15.1” as it did “not include plaintiff’s original claims against Velie and Butler
and does not indicate whether plaintiff intends to abandon those claims or supersede
those allegations with his submission.” Id. at 3. 	The Court observed that the caption
“does not contain the names of the current defendants and the document does not
include a list of parties, causes of action, any request for relief, and is not signed.” Id.
The Court averred6 that plaintiff “may not submit an amended complaint and at the
same time proceed with the original complaint.” Id. 	Thus, the Court held it “will not
accept the submissions (Dkt. Nos. 11 and 12) as the amended complaint. The
complaint (Dkt. No. 1) remains the operative pleading.” Id. at 4. The Court granted
6 To be clear, in considering the Original Complaint together with the Amended Complaint and directing
defendants to respond, the Court was not concluding that the combined operative pleading would survive
dispositive motion practice, only that it survived section 1915 review.
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plaintiff an extension of time to provide copies of the Original Complaint for service on
defendants. See id.
On September 14, 2024, plaintiff sought an extension of time to submit copies of
the complaint for service, which the Court granted. See Dkt. Nos. 14, 15. On
September 30, 2024, plaintiff filed an Amended Complaint. See Dkt. No. 17. On
November 20, 2024, U.S. District Court Judge Anne M. Nardacci reviewed plaintiff’s
amended complaint pursuant to 28 U.S.C. § 1915. See Dkt. No. 20. In reviewing his
Amended Complaint, the Court noted that plaintiff did not attach to his Amended
Complaint the exhibits that he submitted with his original complaint. See id. at 2. The
Court, acknowledging that an amended complaint supersedes an original complaint in
its entirety, concluded that it would not “require plaintiff to file an amended complaint
that includes the original exhibits” as such an approach would be “‘an unnecessary
procedural hoop that would waste resources and delay resolution of this action.’” Id.
(quoting Alexander v. U.S., No. 13-CV-678, 2013 WL 4014539, at *3 (N.D. Cal. Aug. 5,
2013)). The Court concluded, due to plaintiff’s pro se status, it will “consider the
documentation attached to the original complaint as incorporated by reference in the
amended complaint.” Id.
Although the Court’s November 20, 2024,7 Decision & Order does not indicate
that it incorporated by reference any portion of the Original Complaint beyond the
exhibits, in reviewing the Amended Complaint, the Court cited the Original Complaint for
many of the factual allegations therein alleged. See Dkt. No. 20 at 2. Thus, the Court
7 The November 20, 2024, Decision & Order concluded that the only claims that survived were the Eighth
Amendment excessive force claims against Butler for the alleged September 16, 2023, incident and
against Velie for the alleged September 17, 2023, incident. See Dkt. No. 20 at 12.
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implicitly determined that it would incorporate by reference the facts alleged in the
Original Complaint, together with the facts and allegations in the Amended Complaint.
The undersigned observes that defendants did not appeal or express any objection to
the November 11, 2024, Decision & Order. The undersigned considers this
determination as the law of the case.8 Thus, the undersigned will consider the
Amended Complaint,9 together with the Original Complaint and appended exhibits,
when considering defendants’ motions. See, e.g., Guy v. MTA New York City Transit,
403 F. Supp. 3d 131, 133 (E.D.N.Y. 2017) (“It is true that an amended complaint
ordinarily replaces the original complaint. Given Plaintiff's pro se status, however, the
Court will consider both the Third Amended Complaint and First Amended Complaint
together.”) (citing Arce v. Walker, 139 F.3d 329, 332 n.4 (2d Cir. 1998)).
2. Sufficiency of Amended Complaint10
Defendants argue, “even assuming arguendo that Plaintiff needs not re-submit
these exhibits to have them ‘attached’ to his Amended Complaint, see Second IFP
Order at 2, such exhibits cannot be considered by the Court on a motion to dismiss.”
Dkt. No. 34-7 at 12. Defendants argue the exhibits are violative of Fed. R. Civ. P. 10(c)
and are not a “‘written instrument’” within that rule’s meaning. See id. at 11. They
8 In so concluding, the undersigned recognizes that the August 14, 2024, Decision & Order the
undersigned advised plaintiff that he cannot continue with both an Original and Amended Complaint. See
Dkt. No. 13 at 3. However, the November 20, 2024, decision was later filed and addresses a different
submission, dkt. no. 17. Thus, the undersigned’s directive in the August 14, 2024, reviewing dkt. nos. 11,
12, did not bar the District Judge, in the November 20, 2024, Decision & Order, dkt. no. 20, from
permitting this while reviewing the Amended Complaint, dkt. no. 17.
9 The undersigned observes that the Amended Complaint largely refers to the exhibits and does not have
a detailed recitation of the facts. See Dkt. No. 17.
10 As noted, supra, although defendants did not include consideration of the original complaint in this
analysis, the undersigned will assess this argument with the understanding that the amended complaint
will mean the original complaint, the exhibits attached to the amended complaint, and the amended
complaint.
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contend that “none of Plaintiff’s exhibits is a document that ‘defines rights, duties,
entitlements, or liabilities,’ that ‘sets forth the legal basis for his claims,’ that Plaintiff
‘relied upon in bringing his [] claim,’ or ‘integral’ to his complaint, they cannot be deemed
as part of the pleading under Rule 10(c).” Id. Further, defendants contend, “[s]tanding
alone, Plaintiff’s Amended Complaint provides nothing more than conclusory allegations
of an ‘assault’ or a ‘gang assault.’” Id. at 12. Defendants argue that the Amended
Complaint “does not plead any facts as to the connection between the alleged force
used and the alleged injuries.” Id. at 13. “In addition to having failed to specify what the
Defendants did, Plaintiff also failed to sufficiently describe the extent of injuries allegedly
sustained or to specify which Defendant caused what injuries under what
circumstances, thereby providing no basis to ‘allow [] the court to draw the reasonable
inference’ that the conclusory alleged use of force was unreasonable.” Id. Thus,
defendants contend, “[b]ecause Plaintiff failed to allege sufficient factual matter that is
entitled to the assumption of truth to state claims of excessive force by either
Defendant, his Eighth Amendment excessive force claims should be dismissed.” Id.
Among other cases, defendants cite Smith v. Hogan, 794 F.3d 249 (2d Cir.
2015). There, the Second Circuit upheld the District Court’s determination that an
affidavit a plaintiff attached to the complaint was not a “written instrument” under Rule
10(c) “because it is not a document evidencing legal rights or duties or giving formal
expression to a legal act or agreement, such as a deed, will, bond, lease, insurance
policy or security agreement.” Id. at 254. The Court noted that the affidavit in question
was “a personal, narrative summary of his experiences working in the cafeteria and of
the events that occurred on the day he was discharged, bears no resemblance to
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instruments such as contracts, registration statements, deeds or indentures.” Id.
However, the Smith Court did not end the analysis there. It observed that it has held,
under Rule 10(c), that at the motion to dismiss stage, it may consider “documents that
the plaintiffs either possessed or knew about and upon which they relied in bringing he
suit” and “an ‘integral document where the complaint ‘relies heavily upon its terms and
effect.’” Id. at 254-55 (quoting City of Pontiac Policemen’s & Firemen’s Ret. Sys. v.
USB AG, 752 F.3d 172, 179 (2d Cir. 2014); Int’l Audiotext Network, Inc. v. Am. Tel. &
Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995)). The Court determined that the affidavit was not
“integral” to the complaint nor did his assertions in the affidavit, which was “a writing of
his own creation that post-dates his termination,” did not have any “independent legal
significance” to his wrongful termination claim nor was it a “document that he relied
upon” in bringing his claim.
In opposition to defense counsel’s argument that plaintiff failed to submit exhibits
with his amended complaint, plaintiff contends, “I did submit my exibits (sic). Someone
is interfering with my mail. Either way, at the bottom of page 2 (*10) of the Decision and
Order the Judge states ‘Because Plaintiff is a pro se, the Court will consider the
documentation attached to the original complaint.” Id. at 2. 	Plaintiff contends, in
response to defendants’ argument that the amended complaint “is not detailed enough,”
that “this is again not true. The grievances *1-3 are very detailed as to address these
gang assaults that were completely unprovoked also the complaint is very detail (sic) as
to how these gang assaults were unprovoked.” Id. at 3.
Were the undersigned to adopt defendants’ argument that the Court could not
consider plaintiff’s exhibits on the motion to dismiss because the exhibits are not
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“written instruments,” even considering the Original Complaint and Amended Complaint
together, the undersigned would agree that the combined complaint fails to specify
which defendant engaged in what conduct apart from other nonparty corrections
officers. He does not define what the alleged assaults entailed. The undersigned
agrees, the combined complaints, [s]tanding alone . . . provide[] nothing more than
conclusory allegations of an ‘assault’ or a ‘gang assault.’” Dkt. No. 34-7 at 12.
In the Original Complaint, plaintiff contends, “[m]y front teeth were knocked out
by a gang assault leaded (sic) by C.O. Butler a number of C.O.’s and a Sergent (sic) on
9-16-23.” Compl. at 4. He states that on September 17, 2023, he was “brutaly (sic)
gang assaulted leaded (sic) by Sergent (sic) Velie and now I have a permenant (sic)
scar above my right eye. Then I was gang assaulted agian (sic) in the clinic the same
day 9-17-23 from 7:00 9:00 AM.” Id. In the Amended Complaint, plaintiff contends
“C.O. Butler and a number of C.O.s with a Sergent (sic) gang assaulted me on 9-16-23.
Then the next morning Sergent (sic) Velie and a number of C.O’s (sic) gang assaulted
me in my cell then again in the clinic.” Dkt. No. 17 at 8. He contends that, with respect
to Sargeant Velie, “that they rushed in my cell and beat me cause they claim I spit blood
on a Sgt. This gang assault was completely unprovoked.” Id. at 10. “I was gang
assaulted by multiple C.O.’s (sic) and left with permanent injuries to my face . . . and
held responsible for a number of grown man (sic) assaulting me.” Id. at 12.
Further, the only “injury” the amended complaint discusses is with respect to a
dismissed conditions-of-confinement claim not involving Butler or Velie: “as a result of
having no tooth brush from 9-16-23 to 10-1-23 one of my tooth rotted and I had to get it
pulled out last month.” Dkt. No. 17 at 17. He does not specify any injuries associated
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with the alleged assaults nor indicate what specific force Butler or Velie inflicted versus
nonparty corrections officers.
“[E]ven pro se plaintiffs asserting civil rights claims cannot withstand a
motion 	to 	dismiss 	unless 	their 	pleadings 	contain 	factual 	allegations
sufficient to raise a right to relief above the speculative level.” Jackson v.
N.Y.S. Dep’t of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y.2010) (quoting
Twombly, 550 U.S. at 555) (internal quotation marks omitted). Dismissal is
justified, therefore, where “the complaint lacks an allegation regarding an
element necessary to obtain relief,” and therefore, the “duty to liberally
construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.”
Geldzahler 	v. 	New 	York 	Medical 	Coll., 	663 	F.Supp.2d 	379, 	387
(S.D.N.Y.2009) (internal citations and alterations omitted).
James v. Correct Care Solutions, No. 13-CV-0018 (NSR), 2013 WL 5730176, at *2
(S.D.N.Y. Oct. 21, 2013).
The materials that may be considered on a motion to dismiss are those “asserted
within the four corners of the complaint, the documents attached to the complaint as
exhibits, and any documents incorporated in the complaint by reference.” McCarthy v.
Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). One way a document may
be deemed incorporated by reference is where the complaint “refers to” the document.
James, 2013 WL 5730176, at *3 (quoting EQT Infrastructure Ltd. v. Smith, 861 F.Supp.
2d 220, 224 n.2 (S.D.N.Y. 2012)). Rule 10(c) states, “[a] copy of a written instrument
that is an exhibit to a pleading is part of the pleading for all purposes.”
Although the undersigned concludes it is not necessary, for purposes of this
case, to determine whether plaintiff’s alleged grievances are “written instruments” under
Rule 10(c), the undersigned does determine that these are documents that were
incorporated by reference, are integral to the complaint, and relied on in bringing this
suit. See Peone v. Cnty. of Ont., No. 12-CV-6012 CJS, 2013 WL 775358, at *1
(W.D.N.Y. Feb. 28, 2013) (considering grievances on motion to dismiss grievances
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where the plaintiff described grievances and they were integral to his claim); Young v.
Corcoran, 164 F. Supp. 3d 419, 423 (W.D.N.Y. 2016); see generally Nevarez v. Hunt,
770 F. Supp. 2d 565, 569 (W.D.N.Y. 2011) (“While those allegations are somewhat
sparse, a court, in ruling on a motion to dismiss under Rule 12(b)(6), may consider not
just the complaint itself, but “any written instrument attached to it as an exhibit . . . .” Sira
v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (“Here, plaintiff has attached to the complaint
copies of grievances, misbehavior reports, and other documents relating to his claims.
Bearing in mind the liberality with which pro se pleadings are construed, I believe that
the complaint, including these documents, sufficiently puts defendants on notice of the
nature of and basis for plaintiff's claims. Defendants' motion for a more definite
statement is therefore denied.”); Cooper v. Dennison, No. 08-CV-6238 CJS, 2011 WL
1118685, at *1 (W.D.N.Y. Mar. 24, 2011) (“The Court's review of Plaintiff's claims
includes documents related to a grievance that he attached to the original Complaint.”)
(citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (“[T]he
complaint is deemed to include any written instrument attached to it as an exhibit or any
statements or documents incorporated in it by reference.”)).
Accordingly, as the undersigned finds that the exhibits are integral to the
complaint, they may be properly considered.11 Therefore, it is recommended that
defendants’ motion to dismiss be denied.
B. Motion for Summary Judgment
1. Arguments
11 Defendants neither argue nor address whether the plaintiff’s pleadings and exhibits – the complaint,
amended complaint, and exhibits – read together, provide sufficient particularity.
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Defendants argue that plaintiff did not fully and properly exhaust his
administrative remedies with respect to the alleged instances of Butler and Velie’s use
of excessive force. See Dkt. No. 34-7.
Plaintiff argues that he “grieved and exhausted remedies” and his filings at *6-*9,
prove exhaustion as does his notarizing of those grievances. See Dkt. No. 39 at 2. He
contends that he exhausted his administrative remedies “through grievance and
disciplinary hearing appeal and that “*1-512 prooves (sic) this.” Dkt. No. 21 at 1. He
also states that because of the level of “gang assaults by the staff” at Great Meadow,
“excessive force grievances are not processed.” Id. 	Plaintiff further contends that
“Great Meadow was not recording my grievances. I grieved and exhausted remedies
for that issue alone *6-9 prooves (sic) this.” Id. at 2. Plaintiff contends “[t]his is the
reason all my grievances were notarize (sic) before I left Great Meadow C.F.” Id.
Plaintiff contends that, because there “are so many gang assaults by the staff there . . .
excessive force grievances are not processed and is most likely the reason this jail has
been shut down.” Id.
In reply, defendants assert that plaintiff’s exhibits “establish that Plaintiff failed to
properly follow the procedures set forth in 7 N.Y.C.R.R. 701.” Dkt. No. 42 at 4. They
contend that even if the Court were to assume that plaintiff actually sent out all of the
grievances and appeals he submitted to the Court, he still fails to demonstrate full and
12 The asterisks (*) refer to plaintiff’s use of stars to connect to his “Table of Content” which he contends
refers to exhibits to his original complaint which plaintiff also appends to his opposition papers. In the
table of contents, plaintiff states, “[a]lthough these Exibits (sic) are in my original complaint, They have
been renumbered with a * to be specific to this motion. This is to make it easier to view.” Dkt. No. 39 at
6. However, as defendants point out, the exhibits plaintiff submits along with his opposition do not fully
correlate, either in number or in sameness, to those exhibits submitted with the original complaint. See
Dkt. No. 42 at 4 n.1. Thus, the undersigned adopts defendants’ method of distinguishing the exhibits by
referring to the exhibits submitted with the original complaint to their original numeration and referring to
an asterisk, followed by a number, to refer to the exhibits plaintiff submitted with his opposition. See id.
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proper exhaustion. See id. at 7-8. Defendants contend “the dates that Plaintiff put on
his various submissions are, at best, very loosely associated with when they were
actually signed before a notary in that the former somewhat precede the latter.” Dkt.
No. 42 at 5. Defendants suggest that the “gross discrepancies” between when plaintiff
dated his submissions and when they are notarized “clearly demonstrate the incredibility
of the dates purported on all Plaintiff’s submissions and thus call into question not only
when Plaintiff actually mailed such communication, but also if they were submitted at
all.” Id. at 5.
The Court adopts defendants’ “reconstruction” of plaintiff’s submissions, referred
to as “events” 1-12.:
1. 	Plaintiff 	composed 	a 	grievance 	letter 	dated 	September 	28, 	2023,
addressed to the Incarcerated 	Grievance Review 	Committee (IGRC),
regarding 	the 	alleged 	September 	16, 	2023, 	incident; 	this 	letter 	was
notarized on October 3, 2023. See Plaintiff’s Exhibit 1, ECF No. 12, at 4-5
(same as Plaintiff’s Exhibit *1, ECF No. 39, at 7-8.
2. 	Plaintiff 	composed 	two 	grievance 	letters 	dated 	October 	1, 	2023,
addressed to IGRC, regarding the alleged September 17, 2023, incident;
these letters were notarized on October 3, 2023. 	See Plaintiff’s Exhibit 6-
7, ECF No. 12, at 10-11 (same as Plaintiff’s Exhibits *2-*3, ECF No. 39, at
9-11.
3. Plaintiff composed a grievance letter dated October 10, 2023, addressed
to IGRC, mentioning, inter alia, the alleged September 16-17, 2023,
incidents; this letter was notarized on November 29, 2023. 	See Plaintiff’s
Exhibit 19, ECF No. 12, at 27-28.
4. Plaintiff composed an appeal letter dated October 21, 2023, addressed
to the Superintendent, alluding, inter alia, to the alleged September 16-17,
2023, incidents; this letter was notarized on January 11, 2024. 	Plaintiff’s
Exhibit 26, ECF No. 12, at 39-40 (same as Plaintiff’s Exhibit *8, ECF No.
39, at 19-20).
5. Plaintiff composed an appeal letter dated October 26, 2023, addressed
to the Superintendent, appealing, inter alia, his purported grievances
related to the alleged September 16-17, 2023, incidents; this letter was
notarized on December 11, 2023. See Plaintiff’s Exhibit 20, ECF No. 12, at
20-30.
6. Plaintiff received a letter from the Incarcerated Grievance Program (IGP)
Supervisor, dated October 30, 2023, accompanied by a list of grievances
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on file for Plaintiff, stating that anything missing from the list should be
refiled. See Plaintiff’s Exhibits 13-14, ECF No. 12, at 19-20 (partially same
as Plaintiff’s Exhibit *6, ECF No. 39, at 16).
7. Plaintiff composed an appeal letter dated October 31, 2023, addressed
to the Central Office Review Committee (CORC), this letter was notarized
on November 17, 2023. 	See Plaintiff’s Exhibit 15, ECF No. 12, at 21-22
(same as Plaintiff’s Exhibit *4, ECF. No. 39, at 12-13).
8. Plaintiff composed a grievance letter dated October 3, 2023, addressed
to ‘Grievance’ discussing the computer print-out of his grievances; this letter
was notarized on November 29, 2023. See Plaintiff’s Exhibit 25, ECF No.
12, at 37-38 (same as Plaintiff’s Exhibit *7, ECF No. 39, at 17-18).
9. 	Plaintiff 	composed 	an 	appeal 	letter 	dated 	November 	15, 	2023,
addressed to CORC, regarding the alleged general lack of response from
the superintendent; this letter was notarized on December 11, 2023. 	See
Plaintiff’s Exhibit 18, ECF No. 12, at 26.
10. 	Plaintiff 	composed 	an 	appeal 	letter dated 	November 	11, 2023,
addressed to CORC, appealing his purported grievances related to the
alleged September 16, 17, 2023, incidents; this letter was notarized on
December 11, 2023. See Plaintiff’s Exhibit 21, ECF No. 12, at 31.
11. 	Plaintiff 	composed 	an 	appeal 	letter dated 	November 	21, 2023,
addressed to CORC, generally appealing all missing grievances; this letter
was notarized on January 11, 2024. See Plaintiff’s Exhibit 27, ECF No. 12,
at 41 (same as Plaintiff’s Exhibit *7, ECF No. 39, at 21).
12. 	Plaintiff composed an appeal letter dated December 25, 2023,
addressed to CORC, appealing, inter alia, his purported grievances related
to the alleged September 16, 17, 2023, incidents; this letter was notarized
on January 11, 2024. See Plaintiff’s Exhibit 24, ECF No. 12, at 36.
Dkt. No. 42 at 4-5.
Defendants note that, “although Plaintiff allegedly submitted several grievance
letters, only those mentioned in Events13 1-2 were notarized marginally prior to the
October 7-8, 2023, deadlines for him to file a grievance, with the rest of them notarized
months thereafter.” Dkt. No. 42 at 5. Further, they contend that even if the October 3,
2023, letter, notarized on November 29, 2023, “could be considered an attempt to
resubmit the grievances,” it would fail as “it does not contain a ‘specific description of
13 In referencing “events,” defense counsel is referring to the “[r]econstructed” chronology of twelve
“events” taken from plaintiff’s various submissions and exhibits, also detailed supra at 14. Dkt. No. 42 at
4.
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the problem’ and is almost a month after both the letter from the IGP Supervisor and the
deadlines for Plaintiff to submit a request for an extension.” Dkt. No. 42 at 5 (citing Exh.
8). Further, defendants argue, even if plaintiff’s “purported ‘appeals’” can be considered
attempts to refile his grievances, they were untimely, even assuming, arguendo, that
they were mailed on the day they were notarized.” Dkt. No. 42 at 6.
Document *6 is a list of plaintiff’s grievances on file with Great Meadow, referring
to two grievances, one filed in August 11 and another May 26. See Dkt. No. 39 at 16.
Document *7 is a letter from plaintiff, addressed to “Grievance,” dated October 3, 2023,
and notarized on November 29, 2023, stating that plaintiff received a print out of his
grievance record which does not reflect four grievances he says he filed on September
28, 2023, October 1, 2023, October 1, 2023, and October 2, 2023, relating to “the brutal
gang assault by C.O.’s (sic) on 9/16/23 and 9/17/23.” Id. at 17. Document *8 is a letter
to the Superintendent, purportedly dated October 23, 2023, and notarized on January
11, 2024. The letter refers to filing a grievance on October 3, 2023, receiving no
response, and indicating that he is “appealing to you to exhaust remedies to bring this
issue to court.” Id. He also indicates in his letter that “staff is not responding to my
grievances . . . . and not aknolegde (sic) getting them[.]” Dkt. No. 39 at 26. Document
*9 is a letter dated November 21, 2023, from plaintiff to “CORC,” notarized on January
11, 2024. Dkt. No. 39 at 21. 	The letter states that “[t]his printout shows that Great
Meadow C.F. are ignoring my grievances (and Foil reques (sic))[.] I am appealing to
you to exhaust remedies to bring this in court.” Id. at 21.
Defendants provided declarations for Christopher Collins former Superintendent
of Great Meadow and Rachael Seguin, Director of the Incarcerated Grievance Program.
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See Dkt. Nos. 34-2 (“Collins Decl.”), 34-4 (“Seguin Decl.”). They declared that, at all
relevant times, Great Meadow had a fully-functioning grievance program. See Collins
Dec. at 13, Seguin Decl. at 14.
Collins further declared that the IGP procedures are found in NYCRR Title 7 and
Directive #4040, that “[t]he written policies and procedures concerning the IGP are
widely distributed and readily accessible to incarcerated individuals” and available at
Great Meadow’s law library and grievance office. Collins Decl. ¶¶ 4-7. Collins further
declared that all incarcerated individuals at Great Meadow “were provided with
instructions on how to utilize the grievance process during their orientation and advised
of DOCCS Directive #4040 and that it is available in Great Meadow’s Law Library.” Id.;
Seguin Decl. ¶¶5-6. Great Meadow IGRC Supervisor Seguin and Superintendent
Collins both declared that they conducted diligent searches but that DOCCS has no
records of plaintiff grieving the September 15, or September 17, 2023, incidents or filing
any appeals and submitted both plaintiff’s grievance file and CORC records. See
Collins Decl. at ¶¶17-18, Seguin Decl. at ¶¶15-16, 34-5.
Defendants argue that for the alleged incident with defendant Butler, plaintiff had
until October 7, 2023, to timely file a grievance with the IGRC or until October 31, 2023,
to request an extension of time to file and provide mitigating circumstances for the need
for an extension. See Dkt. No. 34-6 at 2, Collins Decl. ¶¶14, 15. 	They contend plaintiff
had until October 8, 2023, to timely grieve the incident with defendant Velie, or until
November 1, 2023, to request an extension. See Dkt. No. 34-6 at 2, Collins Decl. ¶15.
Defendants contend that records maintained at Great Meadow and Washington
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Correctional Facility14 show that “[p]laintiff did not file any grievances concerning the
alleged use of force incidents on September 16, 2023, and September 17, 2023.” Dkt.
No. 34-6 at 4, Collins Decl. ¶17. On October 30, 2023, the IGP Supervisor sent plaintiff
a printout of all of the grievances they had on file for plaintiff. See Dkt. No. 34-6 at 4;
Seguin Decl. at ¶¶15-16; Dkt. No. 34-5. The printout did not include any grievances
regarding uses of force on September 16 or September 17, 2023. See id. The letter
advised plaintiff “that any missing grievances would need to be resubmitted.” Dkt. No.
34-6 at 4; Compl. at 24. 	“DOCCS records maintained at CORC show that Plaintiff has
not appealed any facility-level grievances concerning the alleged use of force incidents
on September 16, 2023, and September 17, 2023.” Id. at 5, Seguin Decl. ¶¶15-16.
2. Discussion
a. Exhaustion Standards
The Prison Litigation Reform Act (“PLRA”) requires that an incarcerated
individual must exhaust any administrative remedies available to him or her before
bringing an action for claims arising out of his or her incarceration. See Porter v.
Nussle, 534 U.S. 516, 524 (2002); see also Woodford v. Ngo, 548 U.S. 81 (2006). The
exhaustion requirement applies “to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter, 534 U.S. at 532. Further, the exhaustion
requirement applies even where the prisoner seeks relief not available in the
administrative grievance process, such as monetary damages. See id. at 524. To
14 Defendants provide that following Great Meadow’s closure, “DOCCS records that were kept and
maintained at Great Meadow, including grievance records, has (sic) begun to be transferred to
Washington Correctional Facility.” Dkt. No. 34-7 at 3.
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exhaust administrative remedies, the inmate must complete the full administrative
review process set forth in the rules applicable to the correctional facility in which he or
she is incarcerated. See Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation
omitted).
New York State affords state prison inmates the opportunity to seek redress of
complaints regarding prison conditions through a three-tiered grievance procedure
called the Inmate Grievance Program (“IGP”). 	See N.Y. Comp. Codes R. & Regs.
(“N.Y.C.R.R.”) tit. 7, §§ 701.1, 701.5. First, the inmate must file a complaint with an
inmate grievance program clerk within twenty-one days of the alleged incident.15 See
id. § 701.5(a)(1). The inmate is able to request, in writing, an extension to file a
grievance on the basis of “mitigating circumstances” as long as the request is submitted
within forty-five days of the alleged occurrence. 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a). An
IGP representative has sixteen calendar days to informally resolve the issue. See id. §
701.5(b)(1). If no informal resolution occurs, the IGRC must hold a hearing within
sixteen days of receipt of the grievance and must issue a written decision within two
working days after the conclusion of the hearing. See id. §§ 701.5(b)(2)(i)-(ii). If the
determination is unfavorable to the inmate, the inmate may appeal the IGRC’s
determination to the facility Superintendent within seven calendar days of receipt of the
determination. See id. § 701.5(c)(1). Generally, the Superintendent has twenty
calendar days from receipt of the appeal to render a decision. See id. § 701.5(c).
If the Superintendent’s determination is unfavorable, the inmate may appeal to
CORC within seven days after receipt of the Superintendent’s determination. See &
15 “The complaint may only be filed at the facility where the inmate is housed even if it pertains to another
facility.” 7 N.Y.C.R.R. § 701.5(a)(1).
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N.Y.C.R.R. §§ 701.5(d)(i)-(ii). CORC must “review each appeal, render a decision on
the grievance, and transmit its decision to the facility, with reasons stated, for the
[inmate], the grievance clerk, the superintendent, and any direct parties within thirty (30)
calendar days from the time the appeal was received.” Id. § 701.5(d)(3)(ii).
Each step of the IGP process requires that a decision be rendered within a
specified time period. See 7 N.Y.C.R.R. § 701.5. With a harassment grievance,16 there
is an expedited schedule. Harassment grievances are still to be filed with the IGP clerk
who must forward it to the Superintendent by the close of the business day to determine
whether the complaint is properly considered a harassment claim. If the Superintendent
does not consider it to be a “bona fide harassment claim,” it is returned to the IGRC and
handled like all other grievances. 7 N.Y.C.R.R. § 701.8(c). If the Superintendent
determines it is a “bona fide” harassment issue, an investigation is initiated. Id.; 7
N.Y.C.R.R. § 701.8(d)(1)-(3). The Superintendent “will render a decision on the
grievance” within twenty-five calendar days of receipt. Id. at § 701.8(f). Should the
Superintendent fail to respond within the twenty-five day time frame, “the [inmate] may
appeal his/her grievance to CORC” by “filing a notice of decision to appeal [] with the
inmate grievance clerk.” Id. at § 701.8(g). If the inmate receives the Superintendent’s
response and “wishes to appeal the superintendent’s response to CORC, he/she must
file a notice of decision to appeal [] with the inmate grievance clerk within seven
calendar days of receipt of that response.” 	Id. at § 701.8(h). With both the regular
grievance procedure and the expedited harassment procedure, if there is lack of timely
16 Harassment grievances are based on “employee conduct meant to annoy, intimidate, or harm an
inmate. These grievances go directly to a superintendent.” Dabney v. Pegano, 604 F.App’x 1, 3 (2d Cir.
2015) (summary order).
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response, an inmate must appeal “to the next step.” Id. at § 701.6(g)(1)(b)(ii)(2); see
also Eleby v. Smith, No. 9:15-CV-0281 (TJM/DEP), 2017 WL 986123, at *4 (N.D.N.Y.
Jan. 9, 2017), report and recommendation adopted, No. 9:15-CV-00281 (TJM/DEP),
2017 WL 979040 (N.D.N.Y. Mar. 13, 2017); Smith v. Kelly, 985 F. Supp. 2d 275, 281
(N.D.N.Y. 2013) (Suddaby, J.) (“[A]ny failure by the IGRC or the superintendent to
timely respond to a grievance or first-level appeal . . . can—and must—be appealed to
the next level, including CORC, to complete the grievance process.”) (citing 7
N.Y.C.R.R. § 701.6(g)).
Although the Supreme Court of the United States has deemed exhaustion
mandatory, the Second Circuit has recognized that “certain caveats apply.” Ruggiero v.
Cty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citation omitted). In Ross v. Blake,
the Supreme Court held in that “[c]ourts may not engraft an unwritten ‘special
circumstances’ exception onto the PLRA’s exhaustion requirement.” Ross v. Blake, 578
U.S. 632, 635 (2016). Although Ross eliminated the “special circumstances” exception,
courts must still consider the PLRA’s “textual exception to mandatory exhaustion.”
Ross, 879 U.S. at 637. Under this exception, courts must determine whether
administrative remedies were “available” to a prisoner. Id. The Supreme Court
identified three circumstances where administrative remedies may be unavailable to a
prisoner. Id. at 633. 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. (citing Booth v. Churner, 532 U.S. 731, 736, 738 (2001)). “Next, an
administrative scheme might be so opaque that it becomes, practically speaking,
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incapable of use.” Id. Lastly, administrative remedies are unavailable where “prison
administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id.
Generally, if it is found that the inmate has not exhausted all available
administrative remedies, his or her case should be dismissed without prejudice unless
the time for permitting administrative remedies has expired. See Standard Inv.
Chartered, Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 560 F.3d 118, 124 (2d Cir. 2009)
(citation omitted); see Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003) (amended 2004)
(quoting Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999)). DOCCS is required
to maintain grievance files for the current calendar year and the previous four calendar
years whenever an incarcerated individual appeals a grievance to CORC. See 7
N.Y.C.R.R. § 701.6(k)(3).
b. Did Plaintiff Exhaust his Administrative Remedies?
Plaintiff claims to have submitted his grievances regarding the September 16,
2023, and September 17, 2023, alleged uses of force to the IGRC, and to have
appealed to the Great Meadow Superintendent, and to CORC. See generally Dkt. No.
39. Under the IGRC rules, plaintiff had until October 7, 2023, to grieve the September
16 incident and until October 8, 2023, to grieve the September 17, 2023, incident--
twenty-one days from each incident. He had until October 31, 2023, to file an extension
request for the September 16, 2023, incident, and until November 1, 2023, to file an
extension request for the September 17, 2023, incident – forty-five days from each
incident. See 7 N.Y.C.R.R. § 701.5(a)(1); 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a).
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First, the undersigned agrees with the fact that plaintiff had the documents
notarized does not, without more, demonstrate that he mailed the document on those
dates or any dates thereafter17 as notarizing shows only that he had the document
notarized on that date. Even if the undersigned assumes that plaintiff mailed or
submitted the documents on the date they were notarized, he still cannot demonstrate
that he properly and fully exhausted his administrative remedies.
Assuming plaintiff submitted (1) his September 28, 2023, grievance letter to the
IGRC regarding the September 16, 2023, incident on October 3, 2023, the date it was
notarized; (2) his October 1, 2023, grievance letter to the IGRC referencing the
September 17, 2023, incident on October 3, 2023, the date it was notarized, (3) his
October 10, 2023, grievance letter to the IGRC18 referring to the September 16 and 17,
2023, incidents, not being reflected in his grievance record,19 on November 29, 2023,
the date it was notarized, as defendants point out, only the September 28, 2023, and
October 1, 2023 (items 1 and 2), letters were notarized before the expiration of the
twenty-one-day deadline from the incidents set forth in 7 N.Y.C.R.R. § 701.5(a)(1) for
plaintiff to file a grievance with the IGRC. Plaintiff did not file a request for an extension
of time setting forth the reasons for why he needed an extension as 7 N.Y.C.R.R. §
701.5(a)(1) requires. However, even if the undersigned were to consider plaintiff’s
October 10, 2023, letter as either an attempt to refile grievances regarding the
September 16 and 17, 2023, alleged uses of force or a request for an extension of time
17 However, the date of notarizing does establish that plaintiff could not have mailed the documents prior
to the date they were notarized.
18 See Compl. at 32.
19 See Compl. at 42.
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to file the grievances, the letter was not notarized until November 29, 2023. See Compl.
at 42. Even assuming this letter was mailed on November 29, 2023, this date is past
both the twenty-one-days from the incidents and the forty-five-day window to file an
extension request and does not amount to a refiling of the grievances. See Dkt. No. 12
at 37-38. 	Thus, this letter would be untimely and would not properly serve as either a
timely grievance or a request for an extension of time to file the grievances.
Next, plaintiff submits various communications that he purports to be appeals to
the Superintendent and CORC. Plaintiff’s October 26, 2023, appeal letter to the
Superintendent was not notarized until December 11, 2023. See Compl. at 30.
Plaintiff’s October 31, 2023, appeal letter to CORC noting that he did not receive a
response to his grievances was not notarized until November 17, 2023. See Compl. at
26. 	Plaintiff’s appeal letter to the Superintendent, although dated October 21, 2023,
was not notarized until January 11, 2024. See Compl. at 44. Plaintiff’s November 13,20
2023, appeal to CORC regarding a lack of Superintendent’s response was not notarized
until December 11, 2023, eighty-six and eighty-seven days after the alleged uses of
force and appears to have been filed with CORC rather than to the grievance clerk as
required by 7 N.Y.C.R.R. 701.5(b)(c). See Compl. at 31.21 Plaintiff’s letter to CORC
dated December 25, 2023, referring to Great Meadow “refus[ing] to respond to my
grievances[,]” is notarized on January 11, 2024. See Compl. at 41.
Christopher Collins declared that he was the Superintendent of Great Meadow at
all relevant times, and at all relevant times and until it closed, Great Meadow had a fully-
20 It is unclear if this date is November 13, 2025, or November 15, 2025. See Compl. at 31.
21 There are additional communications in the exhibits that are not mentioned here as the other
communications relate to his FOIL requests, and those claims were dismissed.
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functioning and available grievance program. See Collins Decl. ¶13. Collins further
declared that the IGP procedures are found in NYCRR Title 7 and Directive #4040, that
“[t]he written policies and procedures concerning the IGP are widely distributed and
readily accessible to incarcerated individuals” and available at Great Meadow’s law
library and grievance office. Id. ¶¶ 4-7. Collins also declared that all incarcerated
individuals at Great Meadow “were provided with instructions on how to utilize the
grievance process during their orientation and advised of DOCCS Directive #4040 and
that it is available in Great Meadow’s Law Library.” Id.; Seguin Decl. ¶¶5-6.
Great Meadow IGRC supervisor Seguin and Superintendent Collins declared that
they have no records of plaintiff grieving the September 16, or September 17, 2023,
incidents or filing any appeals. See Dkt. Nos. 34-2, 34-4, 34-5. Although plaintiff has
submitted various exhibits with the Court that he purports are his grievances and
appeals, Great Meadow indicates it has no record of receiving them.
Defendants provide that the IGP supervisor sent plaintiff a letter on October 30,
2023, of plaintiff’s grievance file, in response to plaintiff’s “written inquiry on October 25,
2023,” which showed there were no grievances regarding the alleged use of force
incidents on September 16 and September 17, 2023, and the only grievances they had
were filed on May 26, 2023, and August 11, 2023. Dkt. No. 34-7 at 9. Plaintiff was
advised in this letter that any grievance that was missing would need to be refiled. See
id.; Dkt. No. 1 at 24. Defendants argue that plaintiff did not refile any grievance. See
Dkt. No. 34-7 at 9.
Insofar as plaintiff contends that he appealed the disciplinary determination
related to the misbehavior report he was issued, following the alleged assaults,
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“appealing a disciplinary determination is no substitute for filing and pursuing to
completion a grievance through the IGP.” Eleby, 2017 WL 986123, at *6 (citing McCoy
v. Goord, 255 F. Supp. 2d 233, 256 (S.D.N.Y. 2003)).
As defendants support their arguments that plaintiff did not exhaust his
administrative remedies with declarations from the IGRC Supervisor and
Superintendent as well as printouts reflecting the grievances and CORC appeals
plaintiff filed while incarcerated at Great Meadow, with these submissions, defendants
have satisfied their initial burden of demonstrating that a grievance procedure existed,
and plaintiff failed to exhaust administrative remedies related to the September 16 and
17, 2023, use of force incidents. See Rainey v. Luther, No. 9:23-CV-0027 (LEK/TWD),
2025 WL 2784055, at *9 (N.D.N.Y. July 31, 2025), report and recommendation adopted,
No. 9:23 CV-27 (LEK/TWD), 2025 WL 2781658 (N.D.N.Y. Sept. 30, 2025)(citing
Bennett v. Onua, No. 09 Civ. 7227, 2010 WL 2159199, at *3 (S.D.N.Y. May 26, 2010)
(finding that the defendants “adequately supported the affirmative defense of failure to
exhaust” where “a search of the grievance log records . . . did not reveal any record of a
grievance” filed by the plaintiff)); see Hilton v. Mahan, No. 9:23-CV-00209 (MAD/CFH),
2024 WL 6935161, at *5 (N.D.N.Y. Feb. 29, 2024), report and recommendation
adopted, No. 9:23-CV-209 (MAD/CFH), 2024 WL 1242263 (N.D.N.Y. Mar. 22, 2024)
(“Accepting as true, for purposes of this motion, that plaintiff timely filed a complaint with
the IGRC regarding his claims set forth in this action, he still failed to timely file an
appeal of this grievance with the CORC when he failed to receive a response. See
Compl. at 5-6; see also Dkt. No. 22 at 15-17. Without filing such an appeal, plaintiff has
not satisfied the PLRA's exhaustion requirements. See Woodford v. Ngo, 548 U.S. 81,
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90 (2006) (“Proper exhaustion demands compliance with an agency's deadlines[.]”); see
also Petit v. Bender, No. 99-CV-0969 (SHS), 2003 WL 22743485, at *5 (S.D.N.Y. Nov.
19, 2003) (“Courts in this jurisdiction have regularly held that failure to timely file an
appeal during the administrative grievance process, followed by a subsequent denial of
access by CORC due to untimeliness, will not constitute exhaustion.”) (collecting
cases). Thus, defendants have met their burden of demonstrating that a grievance
procedure existed, and that plaintiff failed to exhaust administrative remedies related to
the June 21, 2022, incident. As a result, the undersigned must assess whether
administrative remedies were available to plaintiff.”). The undersigned must next
assess whether administrative remedies were available to plaintiff.
c. Were Administrative Remedies Available?
Plaintiff contends in his opposition that “Great Meadow C.F. was not recording
my grievances,” and “that excessive force grievances are not processed” at Great
Meadow, hypothesizing that “is most likely the reason this jail has been shut down,” Dkt.
No. 39 at 1-2. By asserting that his grievances went unfiled and unanswered and
suggesting that the grievances were received but intentionally went unfiled, plaintiff is
essentially arguing that administrative remedies were unavailable to him due to (1)
opacity, and (2) machination.
There are three potential circumstances in which administrative remedies may be
unavailable:
(1) where the administrative procedure technically exists but operate as a
“dead end—with officers unable or consistently unwilling to provide any
relief to aggrieved inmates”; (2) where the administrative scheme is so
“opaque that is becomes, practically speaking, incapable of use”; and (3)
where prison administrators “thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.”
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Ross v. Blake, 578 U.S. 632, 643-44 (2016). Plaintiff bears the burden of establishing
that the grievance process was unavailable to him. See Saeli v. Chautauqua Cnty.,
N.Y., 36 F.4th 445, 453 (2d Cir. 2022).
Here, there is clear dispute about whether plaintiff filed his grievances at all, but
there is also both an implicit opacity argument and allegations of machination.
Courts in this Circuit have often opined that the grievance procedure is opaque when an
incarcerated individual contends his grievances went unfiled as “the regulations plainly
do not describe a mechanism for appealing a grievance that was never filed.” Williams
v. Correction Officer Priatno, 829 F.3d 118, 126 (2d Cir. 2016). Plaintiff contends that
his grievances went unfiled and unanswered, and, thus, he filed additional grievances
and appeals, which also went unanswered and unfiled. Before the Court is “a clash of
sworn statements” where the plaintiff attests that he filed grievances, which went
unanswered and unfiled, and defendants submitted sworn statements from DOCCS
employees stating that the records revealed that no grievances were ever filed. “To the
extent that these statements are in contradiction, the Court cannot resolve this
contradiction at the summary judgment stage, because the Court is prohibited from
making credibility determinations.” Hudson v. Kirkey, No. 20-CV-581, 2021 WL
1966721, at *3 (N.D.N.Y. May 17, 2021) (citing McLean v. LaClair, No. 19-CV-1227,
2021 WL 671650, at *8 (N.D.N.Y. Feb. 22, 2021) (“Here, there is again a clash of sworn
statements: [the] [p]laintiff attests that he attempted to submit the appeals, and [the]
[d]efendants attest that they were never filed . . . . [T]he Court cannot credit [the]
[d]efendants’ sworn statements over [the] [p]laintiff’s.”); see also Zulu v. Barnhart, No.
16-CV-1408, 2019 WL 2997226, at *13 (N.D.N.Y. Apr. 22, 2019) report and
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recommendation adopted, 2019 WL 2150628 (N.D.N.Y. May 17, 2019) (“Defendants’
evidence is largely consistent with plaintiff's claim that . . . the timely grievances that he
attempted to submit while confined to the SHU at Marcy were not filed. The absence of
any official records of plaintiff's initial attempts to give the incident comports with [the]
plaintiff's assertion that once he handed a grievance through the feed-up hatch in the
SHU, it was out of his possession and it was not filed.”).
Here, in addition to it being in conflict whether plaintiff ever actually filed the
grievances he submits to this Court, it is also not clear what the regulations required
plaintiff to do when he learned his grievances were unfiled and unanswered. “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.” Jackson v. Moore, No. 9:21-CV-1001 (GTS/ATB), 2023 WL 4710869, at *5
(N.D.N.Y. Apr. 14, 2023), report and recommendation adopted, No. 9:21-CV-1001
(GTS/ATB), 2023 WL 4711091 (N.D.N.Y. July 24, 2023) (citing cases). However,
“following Williams, multiple courts in the Second Circuit have “denied a defendant’s
motion for summary judgment when faced with an unanswered and unfiled grievance”
by an inmate, in the absence of grievance procedures making clear to the inmate how
to proceed under those circumstances.” Gayot v. Maldonado, No. 14-CV-4339 (RPK)
(AYS), 2024 WL 5239203, at *5 (E.D.N.Y. Dec. 28, 2024) (citing cases); Hudson v.
Kirkey, No. 20-CV-581 (LEK/DJS), 2021 WL 1966721, at *4 (N.D.N.Y. May 17, 2021)
(“[Defendant] has failed to demonstrate the absence of a material factual dispute as to
whether the grievance process was ‘unavailable’ due to the machinations or
misrepresentations of prison officials who inhibited the filing of Plaintiff's submissions.”).
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The IGRC has sixteen days from receipt of a grievance to informally resolve the
grievance or hold a hearing. The Superintendent has twenty-five days after receipt of a
grievance to resolve a harassment grievance if the Superintendent determines that it
states a bona fide harassment claim, if true. Where the Superintendent does not
respond within twenty-five days, “the grievant may appeal his/her grievance to CORC.
This is done by filing a notice of decision to appeal (form #2133) with the inmate
grievance clerk.” 7 N.Y.C.R.R. § 701.8. Yet, it is unclear when the grievant must file the
appeal when the grievance goes unanswered or unfiled, e.g., is he to file it on day
twenty-six, i.e., immediately after the time-period for the Superintendent to respond
expires, or does he have a longer grace period?
It would appear that an inmate with a grievance on the non-harassment track
should appeal to the Superintendent, through the IGRC, once the sixteen days have
passed since submitting a grievance and receiving no response, and an inmate with a
grievance on the harassment track should appeal to the Superintendent once twenty-
five days had passed after the filing of the grievance. However, it is also not clear
whether the inmate would have to submit the appeal the day after the response window
closed or if they have a grace period. Further, where a grievance is unfiled and
unanswered and the grievant does not know if it will be accepted in the expedited
harassment track (whether the Superintendent will consider it bona fide harassment) or
be remitted for consideration as a non-harassment grievance, the timeline of when to
appeal the “no response” is also not clear.
In the above to paragraphs, the undersigned had to make a lot of assumptions
about the proper approach – ones that are not clearly laid out in the regulations or
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addressed by defendants. “In Williams v. Correction Officer Priatno], the Second Circuit
held that when a plaintiff's grievance is both unfiled and unanswered, the regulations do
not clearly outline the process to appeal or otherwise exhaust administrative remedies,
and therefore, the administrative remedies are unavailable under Ross.” Juarbe v.
Carnegie, No. 9:15-CV-01485 (MAD/DEP), 2016 WL 6901277, at *3 (N.D.N.Y. Nov. 23,
2016) (citing Williams v. Correction Officer Priatno, 829 F.3d 118, 120-21 (2d Cir.
2016)).22
The undersigned recognizes that, unlike in Williams, (1) plaintiff was not in the
SHU; and (2) on October 30, 2023, at the latest, plaintiff was explicitly advised that he
should refile any missing grievances, an action he does not appear to have taken. Yet,
although defendants advised plaintiff, by letter, to refile any grievances that were
missing from his grievance file, “[d]efendant[s] ha[ve] not pointed to any DOCCS
regulation guiding inmates whose grievances were never filed . . . , and as such, there
may be no designated appeals process that Plaintiff should have followed to exhaust.”
Jenkins v. Officer S, No. 19-CV-10728 (KMK), 2023 WL 6259667, at *8 (S.D.N.Y. Sept.
26, 2023). On balance, viewing the facts in the light most favorable to plaintiff, the
record suggests that plaintiff's grievances were submitted, but were unfiled and
unanswered, creating an issue of fact as to whether the grievance process was
available. See Fann v. Graham, No. 9:15-CV-1339, 2018 WL 1399331, *6 (N.D.N.Y.
Jan. 11, 2018). “Because Plaintiff has not yet had an opportunity to conduct discovery
to support his exhaustion theory, the Court finds Defendants’ request for summary
22 Neither defendant nor plaintiff discussed Williams.
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judgment premature.” Johnson v. Owens, No. 9:20-CV-0982 (LEK/CFH), 2022 WL
958127, at *4 (N.D.N.Y. Mar. 30, 2022) (collecting cases).
Insofar as defendants point to the fact that plaintiff “utilized the IGP on more than
one occasion while housed at Great Meadow,” this does not convince the undersigned
to find otherwise as it does not appear that those two grievances involved staff
harassment or that plaintiff appealed those grievances to CORC. See Dkt. No. 42 at 6.
Plaintiff explicitly argues that his grievances were not processed due to the nature of the
content alleged therein. See generally Gayot, 2024 WL 5239203, at *6 (“And plaintiff's
account is not “wholly improbable,” . . . merely because he has successfully filed
grievances on other occasions. A trier of fact could reasonably believe that corrections
officers declined to accept grievances from plaintiff on several occasions even if officers
had accepted grievances from plaintiff at other times.”).
In alternative to summary judgment, defendants request an opportunity to
conduct limited discovery on the basis of an exhaustion and then to hold an exhaustion
hearing. The undersigned finds such request to be appropriate here. See Adams v.
Berkman, No. 9:24-CV-873 (MAD/TWD), 2025 WL 2318706, at *2 (N.D.N.Y. Aug. 12,
2025), report and recommendation adopted, No. 9:24-CV-873 (MAD/TWD), 2025 WL
2318706 (N.D.N.Y. Aug. 12, 2025) (affirming the Magistrate Judge’s recommendation to
deny summary judgment and to order discovery before an exhaustion hearing where
parties had not conducted any discovery); Croney v. Medbury, No. 9:23-CV-1449
(DNH/DJS), 2024 WL 5294279, at *4 (N.D.N.Y. Nov. 12, 2024), report-recommendation
adopted, 2024 WL 4986160 (N.D.N.Y. Dec. 5, 2024) (same); Messa v. Goord, 652 F.3d
305 (2d Cir. 2011).
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V. Conclusion
Wherefore, for the reasons set forth herein, it is hereby
RECOMMENDED, that defendants’ Motion to Dismiss (Dkt. No. 34) be DENIED;
and it is further
RECOMMENDED, that defendants’ Motion for Summary Judgment (Dkt. No. 34)
be DENIED with leave to renew after conducting discovery on the limited issue of
exhaustion and an exhaustion hearing; and it is
ORDERED, that the Clerk serve this Report-Recommendation & Order on parties
in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has 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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV . P. 6(a),
72.23
Dated: February 5, 2026
Albany, New York
23 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Report-Recommendation and Order was mailed to you to serve and file objections. See F ED. R.
C IV . P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal federal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal federal
holiday. See id. § 6(a)(1)(c).
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