Witherspoon v. Corey et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TERRANCE WITHERSPOON,
Plaintiff,
vs. 	9:24-CV-296
(MAD/DJS)
CHARLES JONES; DAVID SHELLHAMMER,
Formerly Known as Sneilhammer; JOSEPH VASILE;
JOHN DOES 1 THROUGH 5, Corrections Officers;
JOHN DOE, Corrections Sergeant; and
DENISE HOPKINS, Formerly Known as Jane Doe,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
TERRANCE WITHERSPOON
25-B-2399
Attica Correctional Facility
Box 149
Attica, New York 14011
Plaintiff, pro se
OFFICE OF THE NEW YORK 	RACHAEL OUIMET, AAG
STATE ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorney for Defendants
Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Terrance Witherspoon ("Plaintiff"), proceeding pro se, commenced this action on March
1, 2024. See Dkt. No. 1. The original complaint set out eight causes of action related to
Plaintiff's treatment while incarcerated at Auburn Correctional Facility ("Auburn") and named
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fourteen defendants. See id. On July 3, 2025, this Court issued a Decision and Order dismissing
some claims and defendants. See Dkt. No. 10. The following claims survived: (1) Eighth
Amendment excessive force and failure-to-intervene claims against Corrections Sergeants Jane
and John Doe, and Corrections Officers Joseph Vasile, David Shellhammer,1 Charles Jones, and
John Does 1 through 5, in connection with an alleged assault on Plaintiff on August 18, 2021; and
(2) a Fourteenth Amendment equal protection claim against Jones, who allegedly used a racial
slur against Plaintiff earlier that day. See id. at 5-8, 19.
On January 9, 2026, Vasile, Shellhammer, and Jones ("Defendants") filed a motion for
partial dismissal and partial summary judgment. See Dkt. No. 27. Specifically, Defendant Jones
moves for summary judgment on the equal protection claim for Plaintiff's failure to exhaust
administrative remedies. See Dkt. No. 27-1 at 7-11. In the alternative, Defendant Jones seeks
dismissal of the equal protection claim for failure to state a cause of action. See id. at 11-12.
Defendants Vasile and Shellhammer move to dismiss the excessive force and failure-to-intervene
claims against them for failure to state a claim. See id. at 12-15. Plaintiff opposed the motion on
January 27, 2026, see Dkt. No. 31, and Defendants replied on February 6, 2026, see Dkt. No. 33.
In a Report-Recommendation and Order dated April 13, 2026, Magistrate Judge Daniel
Stewart recommended granting the summary judgment motion and denying the motion to dismiss.
See Dkt. No. 34. Plaintiff's objections to the Report-Recommendation and Order were filed on
April 30, 2026. See Dkt. No. 36.
1 Defendant Shellhammer was originally identified in the complaint as "Sneilhammer." See Dkt.
No. 1 at 1, 3. After Defendants brought this error to the Court's attention, see Dkt. No. 27-1 at 3
n.1, Magistrate Judge Stewart ordered the Clerk of the Court to correct the docket, see Dkt. No.
34 at 2 n.2, 22.
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Plaintiff filed an amended complaint on May 4, 2026. See Dkt. No. 37. The handwritten
amendments are superimposed on the original complaint, and Plaintiff identifies Defendant Jane
Doe as Corrections Sergeant Denise Hopkins, who is not a party to the motions now before the
Court. See id. 	The Court discerns no other modifications to the original complaint.
For the reasons stated below, the Report-Recommendation and Order is adopted.
II. BACKGROUND
For a recitation of the factual background, the parties are referred to this Court's July 2025
Decision and Order, see Dkt. No. 10 at 5-8, and Magistrate Judge Stewart's Report-
Recommendation and Order, see Dkt. No. 34 at 2-4.
III. DISCUSSION
A. 	Legal Standards
In reviewing a report-recommendation and order, a district court "may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28
U.S.C. § 636(b)(1)(C). "As to a dispositive matter, any part of the magistrate judge's
recommendation that has been properly objected to must be reviewed by the district judge de
novo." Nambiar v. Cent. Orthopedic Grp., LLP, 158 F.4th 349, 358 (2d Cir. 2025) (citations and
internal quotation marks omitted). A proper objection must be timely, specific, and "not raise
new arguments not previously made before the magistrate judge." Id. at 359 (citations omitted).
Objections reiterating arguments already made to the magistrate judge are proper if they are
timely and specific. See id. at 360-61. The Second Circuit has stated that "a party must object to
[a] finding or recommendation on [an] issue with sufficient specificity so as reasonably to alert
the district court of the true ground for the objection." Id. at 359 (citations and internal quotation
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marks omitted). When a party does not object, or do so properly, the court reviews the magistrate
judge's recommendations for clear error. See id. at 359-60.
Pro se litigants' filings should "'be liberally construed'" and "'held to less stringent
standards'" than attorney-drafted submissions. Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Accordingly, this Court must construe
Plaintiff's filings "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citation and emphasis omitted).
Although "the filing of an amended [c]omplaint supersedes a plaintiff's original complaint
in all respects[,]" Praileau v. Fischer, 930 F. Supp. 2d 383, 388 (N.D.N.Y. 2013) (citations
omitted), it "does not moot a pending report-recommendation that identifies pleading defects in
the original complaint when those defects remain in the . . . amended complaint[,]" id. at 389.
"[A] district court retains the authority—and indeed the duty—to sua sponte review the pleading
sufficiency of th[e] amended complaint." Id.
Magistrate Judge Stewart set forth the applicable legal standards for motions to dismiss
and for summary judgment, Plaintiff did not object to those portions of the Report-
Recommendation and Order, and the Court finds no clear error therein.
B. 	Plaintiff's Objections
Plaintiff filed objections to the Report-Recommendation and Order. See Dkt. No. 36.
Some objections respond to Magistrate Judge Stewart's recommendations, while others are either
non-responsive or incomprehensible. See id.
In his first responsive objection, Plaintiff argues that he did not fail to exhaust his
administrative remedies for the equal protection claim because he "inform[ed] Sergeant D.
Hopkins about the racial slurs that Defendant Jones made[,]" and Sergeant Hopkins "told
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[Plaintiff] that she would make sure [he] was safe and the situation was handled." Id. at 1; see id.
at 3. Further, Plaintiff appears to insinuate for the first time that he filed a standalone grievance
regarding the slur, which may have gone missing because "[t]here is alot [sic] of lying and a lot of
cover up[.]" Id. at 3-4. Because Plaintiff raised at least one proper objection on the exhaustion
issue, the Court reviews the corresponding portions of the Report-Recommendation and Order de
novo.
On the Eighth Amendment claims against Defendants Vasile and Shellhammer, Plaintiff's
objections appear to agree with Magistrate Judge Stewart's conclusions. For example, Magistrate
Judge Stewart found that Plaintiff sufficiently alleged those Defendants' personal involvement in
the Eighth Amendment violations and recommended that those claims survive. See Dkt. No. 34
at 15. Plaintiff argues that "[i]t is . . . hard to identify who did what when you have 8 officers
attacking you[,]" Dkt. No. 36 at 5, which Magistrate Judge Stewart recognized, see Dkt. No. 34 at
17-18, and insists that he properly identified Defendants Vasile and Shellhammer under the
circumstances, see Dkt. No. 36 at 5. The Court acknowledges Plaintiff's response to the Report-
Recommendation and Order on this issue, but construes the "objections" as expressions of
agreement as to the Eighth Amendment claims against Defendants Vasile and Shellhammer. As
such, the Court reviews these portions of the Report-Recommendation and Order for clear error.
Plaintiff also makes several objections that are either unclear or do not respond to the
Report-Recommendation and Order. For example, Plaintiff argues that he filed a grievance on
August 19, 2021, and that the grievance was mishandled, but that objection does not address
Magistrate Judge Stewart's conclusion that the grievance only notified Defendants of the beating,
not the racial slur. See id. at 2, 4; Dkt. No. 34 at 9-12. He also "[o]bjects to the fact that
retaliation was the outcome of the situation" when he allegedly told Sergeant Hopkins about the
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racial slur and was subsequently beaten. Dkt. No. 36 at 1-2. To the extent Plaintiff contends his
failure to exhaust administrative remedies is excused due to fear of retaliation, Magistrate Judge
Stewart found this argument conclusory and unpersuasive because Plaintiff offers no supporting
evidence or citations to the record. See Dkt. No. 34 at 13-14. Plaintiff takes issue with that
conclusion, but the Court cannot discern any specific ground for the objection. Plaintiff writes in
relevant part:
The Department of Correctional Facility has a duty to protect an
Incarcerated Individual from cruel and unusual punishment. Once
the Handcuffs was on from the defendant I should of been put in
SHU without incident. All because of a conversation that I had
with the chain of command. . . . Since D. Hopkins is A sergeant and
she over saw the block that day didn't want to be on my side
because Her officers would of looked at her as a trader.
Dkt. No. 36 at 4. Accordingly, the Court reviews the corresponding portions of the Report-
Recommendation and Order for clear error.2
C. 	Failure to Exhaust Administrative Remedies
Magistrate Judge Stewart recommended granting the motion for summary judgment on the
equal protection claim because Plaintiff failed to exhaust his administrative remedies. See Dkt.
No. 34 at 8. For the reasons stated below, the motion is granted.
2 Plaintiff's final objection challenges Magistrate Judge Stewart's denial of his motion to appoint
counsel. See Dkt. No. 36 at 6. Magistrate judges have authority to rule on non-dispositive
motions, such as motions to appoint counsel. See Williams v. Houser, No. 6:26-CV-338, 2026
WL 1333784, *2 (N.D.N.Y. May 13, 2026) (citations omitted). If a party timely objects to a
magistrate judge's decision on a non-dispositive matter, "[t]he district judge . . . must consider
[the] objections and modify or set aside any part of the order that is clearly erroneous or is
contrary to law." FED. R. C IV. P. 72(a). The Court discerns no clear error in Magistrate Judge
Stewart's order denying appointment of counsel at this time. The Court reminds Plaintiff that the
denial is without prejudice, and as Magistrate Judge Stewart stated, Plaintiff may file a new
motion for appointed counsel later in this litigation. See Dkt. No. 34 at 19-22.
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"The Prison Litigation Reform Act ("PLRA") states that '[n]o action shall be brought with
respect to prison conditions under . . . [42 U.S.C. § 1983] . . . by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are available are
exhausted.'" Kearney v. Gebo, No. 9:15-CV-253, 2017 WL 61951, *1 (N.D.N.Y. Jan. 4, 2017)
(quoting 42 U.S.C. § 1997e(a)). "[T]he PLRA's 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 v. Nussle, 534 U.S. 516, 532 (2002)
(citation omitted). According to the Supreme Court, "'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." Kearney, 2017 WL
61951, at *2 (citing Woodford v. Ngo, 548 U.S. 81, 90-103 (2006)).
In most cases, New York uses "a three-step administrative review process" that begins
with the inmate filing a grievance. Id. at *2. Generally, all three levels of review must be
exhausted before an inmate may sue in federal court. See id. (citations omitted). New York
regulations prescribe an expedited review process when an inmate alleges harassment by a prison
employee, but that expedited process still begins with the inmate filing a grievance. See N.Y.
C OMP . C ODES R. & R EGS . tit. 7, § 701.8. "'The primary purpose of a grievance is to alert prison
officials to a problem. . . .'" Thomas v. Waugh, No. 9:13-CV-321, 2018 WL 1508563, *5
(N.D.N.Y. Mar, 27, 2018) (quoting Jones v. Bock, 549 U.S. 199, 219 (2007)). At minimum, an
inmate's grievance must "provide prison officials with notice of the misconduct from which he
seeks redress so that the prison may take appropriate responsive measures." Reynolds v. Stone,
No. 9:20-CV-686, 2021 WL 3271805, *10 (N.D.N.Y. May 24, 2021), R. & R. adopted, 2021 WL
3269053 (N.D.N.Y. July 30, 2021) (citing Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004)).
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An inmate's failure to exhaust is excusable if administrative remedies were unavailable.
See Kearney, 2017 WL 61951, at *2 (quoting Ross v. Blake, 578 U.S. 632, 635-36 (2016)). An
administrative remedy may be considered unavailable if: (1) "it operates as a simple dead end—
with officers unable or consistently unwilling to provide any relief to aggrieved inmates[;]" (2) if
it is part of "an administrative scheme . . . 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." Ross, 578 U.S. at
643-44 (citations omitted).
Here, the record shows that Plaintiff filed grievance number AUB-0671-21 at Auburn on
or about August 19, 2021. See Dkt. No. 27-5 at 12, 15-17. The grievance explains that on August
18, 2021, Plaintiff "informed the black female sergeant" (now alleged to be Hopkins) that another
officer threatened him for asking why he could not use the phone to call his family. See id. at 16.
The grievance goes on to say Hopkins gave Plaintiff her word that he would be safe, and after
Plaintiff left his cell, the same officer who threatened him demanded that he "get on the wall." Id.
The grievance states that after Plaintiff complied, eight officers jumped on him, broke his ribs,
wrist, and foot, and gave him a concussion. See id. The grievance does not mention or allude to
any use of a racial slur.
Plaintiff's filing of grievance number AUB-0671-21 indicates that the grievance process
was available to him. See id. at 15-17. The record also shows Plaintiff completed an orientation
program on grievance policies, see Dkt. No. 27-4 at ¶¶ 5-6, which Plaintiff does not dispute, see
Dkt. No. 31 at 18, and he filed at least three other grievances between December 2016 and
January 2021, see Dkt. No. 27-5 at 12. Furthermore, Plaintiff does not point to any evidence
suggesting retaliation if he properly grieved the use of a racial slur. As Magistrate Judge Stewart
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noted, this conclusory, unsupported claim is insufficient to defeat a summary judgment motion.
See Dkt. No. 34 at 13-14; see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (quoting
Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002)) ("'[C]onclusory statements or mere
allegations [are] not sufficient to defeat a summary judgment motion'").
Although the August 19, 2021, grievance explains the alleged use of excessive force, its
contents fail to put Defendants on notice of an equal protection violation under even the most
liberal construction. See Dkt. No. 27-5 at 12, 15-17 (describing the alleged beating and labeling
the grievance, "Assaulted By Officers"). Likewise, Plaintiff offers no evidence to support his
speculation of a missing grievance or his sudden insinuation that he filed a separate grievance
regarding a racial slur, which is raised for the first time in Plaintiff's objections. See Dkt. No. 36
at 3-4. Plaintiff also appears to argue that he notified the grievance committee of his conversation
with Hopkins, during which he purportedly mentioned a racial slur, see Dkt. No. 31 at 18, but
does not cite any supporting evidence in the record.
Moreover, the Hopkins conversation itself cannot substitute for a properly filed grievance.
The Second Circuit has stated that allowing "generalized complaints regarding the conditions of
an inmate's confinement . . . to shortcut the administrative remedy process . . . would appear to
eviscerate the PLRA's exhaustion requirement[.]" Johnson, 680 F.3d at 239. Although at least
one judge in this District previously determined that complaints made outside a formal grievance
process satisfied the PLRA's exhaustion requirement, that conclusion was based on a fact-specific
evaluation of "whether the informal efforts made to address [the] allegations administratively
[were] sufficient to satisfy the essential functions of the exhaustion requirement." Lewis ex rel.
Lewis v. Gagne, 281 F. Supp. 2d 429, 435 (N.D.N.Y. 2003). The Lewis court also found that the
"informal efforts demonstrate[d] a reasonable attempt to exhaust all possible means before filing
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in federal court." Id. (citing O'Connor v. Featherston, No. 01-CV-3251, 2002 WL 818085, *2
(S.D.N.Y. Apr. 29, 2002); Heath v. Saddlemire, No. 9:96-CV-1998, 2002 WL 31242204, *3-5
(N.D.N.Y. Oct. 7, 2002)).
Here, however, the record shows otherwise. Plaintiff offers no evidence that a verbal
mention of a racial slur was his best attempt at exhausting his administrative remedies, especially
when he filed a grievance about separate conduct that allegedly occurred the same day. The
record is similarly devoid of evidence that any verbal report of a racial slur made its way through
all levels of administrative review. See Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) (citations
omitted) ("Regardless of whether his tort claims or informal complaints put the prison officials on
notice of his grievance 'in a substantive sense,' Johnson [v. Testman] makes clear that to satisfy
the PLRA a prisoner must also procedurally exhaust his available administrative remedies. . . .
Because Macias does not argue that the BOP's administrative remedy system was so confusing
that he justifiably believed his administrative tort claims and informal complaints were his only
available remedies, Macias has no ground to argue that he procedurally exhausted his claims
under Johnson").
Because Plaintiff fails to raise any dispute of material fact as to whether he exhausted
administrative remedies for his equal protection claim, Defendant Jones's motion for summary
judgment is granted, and the claim is dismissed. The Court does not opine further on the merits
of the equal protection claim.
D. 	Excessive Force and Failure-to-Intervene Claims
Defendants Vasile and Shellhammer move to dismiss the Eighth Amendment excessive
force and failure-to-intervene claims against them for failure to allege personal involvement. See
Dkt. No. 27-1 at 12. Magistrate Judge Stewart recommended denying the motion because
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Plaintiff sufficiently alleges their personal involvement. See Dkt. No. 34 at 15. For the reasons
stated below, the motion is denied.
Magistrate Judge Stewart correctly stated that a § 1983 plaintiff must allege each
defendant's personal involvement in the alleged constitutional violation. See id.; Arnold v. Town
of Camillus, 662 F. Supp. 3d 245, 262 (N.D.N.Y. 2023) (citations omitted); Farid v. Ellen, 593
F.3d 233, 249 (2d Cir. 2010) (citations omitted). In other words, "a plaintiff must 'allege a
tangible connection between the acts of a defendant and the injuries suffered.'" Arnold, 662 F.
Supp. 3d at 262 (quoting Beauchine v. City of Syracuse, No. 5:21-CV-845, 2022 WL 561548, *15
(N.D.N.Y. Feb. 24, 2022)). "Group pleading," or a "fail[ure] to differentiate as to which
defendant was involved in the alleged unlawful conduct[,]" is usually not enough. Id. at 266
(citation and internal quotation marks omitted).
However, as Magistrate Judge Stewart acknowledged, see Dkt. No. 34 at 17-18, broadly
pleading multiple defendants' involvement may be acceptable if the allegations "can be liberally
construed as plausibly alleging that all [the identified defendants] engaged in the alleged
[constitutional violations][,]" King-Knight v. New York, No. 9:25-CV-317, 2026 WL 523067, *7
(N.D.N.Y. Feb. 25, 2026). The Court adds that "a collective reference to multiple defendants may
satisfy the pleading standard when, given the specific circumstances of the case and drawing all
reasonable inferences in the plaintiff's favor, there [is] an understandable explanation for why the
[c]omplaint was not more particularized." Lawrence v. Shattick, No. 8:24-CV-656, 2026 WL
237648, *5-6 (N.D.N.Y. Jan. 29, 2026) (citation and internal quotation marks omitted) (finding
that a pro se plaintiff's broad reference to multiple defendants was sufficient because he allegedly
experienced hallucinations and fell unconscious during the claimed constitutional violation); see
also Gomez-Kadawid v. Lee, No. 20-CV-1786, 2022 WL 676096, *6-7 (S.D.N.Y. Feb. 3, 2022),
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R. & R. adopted, 2022 WL 558125 (S.D.N.Y. Feb. 24, 2022) (determining that a pro se plaintiff's
broad allegations of personal involvement were acceptable because the plaintiff was allegedly
anesthetized while the challenged conduct was taking place).
Magistrate Judge Stewart noted that Plaintiff's complaint alleges eight corrections officers
participated in beating him, but because Plaintiff lost consciousness during the beating, he could
not specifically allege how each officer individually harmed him. See Dkt. No. 34 at 16. The
amended complaint also contains these allegations. See Dkt. No. 37 at 5-6. Thus, Plaintiff's
pleadings explain why he could not precisely allege how each officer violated his rights.
Magistrate Judge Stewart also correctly stated that the complaint (and the amended complaint)
accuses "all Defendants" of using excessive force and failing to intervene. See Dkt. No. 34 at 16;
Dkt. No. 37 at 8. Specifically, both pleadings allege that "several C.O.s." [sic] punched and
kicked Plaintiff, then pushed him down the stairs. See Dkt. No. 1 at 9; Dkt. No. 37 at 9. The
complaint and amended complaint identify eight defendants who are corrections officers,
including Defendants Vasile and Shellhammer. See Dkt. No. 1 at 1, 3; Dkt. No. 37 at 1, 3. The
Court therefore finds no clear error with Magistrate Judge Stewart's conclusion that, construed
liberally, Plaintiff's complaint and amended complaint plausibly allege Defendants Vasile and
Shellhammer's personal involvement in the Eighth Amendment violations.3
IV. CONCLUSION
3 Magistrate Judge Stewart also credited new factual assertions of Defendants Vasile and
Shellhammer's personal involvement in Plaintiff's opposition to the motion to dismiss. See Dkt.
No. 34 at 18. Ordinarily, a court deciding a Rule 12(b)(6) motion to dismiss only considers the
complaint and documents integral to, attached to, or incorporated by reference in the complaint.
See Berk v. Choy, 607 U.S. 187, 193 (2026) (quoting FED. R. C IV. P. 12(d)); Mangiafico v.
Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (quoting Chambers v. Time Warner, Inc., 282 F.3d
147, 152-53 (2d Cir. 2002)). Because a liberal reading of the complaint shows Plaintiff
sufficiently alleged Defendants Vasile and Shellhammer's personal involvement, the Court does
not consider additional facts outside the complaint.
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After carefully reviewing the entire record in this matter, the parties' submissions, and the
applicable law, and for the reasons set forth above, the Court hereby
ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No.
34) is ADOPTED; and the Court further
ORDERS that Defendants' motion for partial dismissal and partial summary judgment
(Dkt. No. 27) is GRANTED in part and DENIED in part;4 and the Court further
ORDERS that Plaintiff's equal protection claim against Defendant Jones is DISMISSED
for failure to exhaust administrative remedies; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 19, 2026
Albany, New York
4 Defendant Jones's motion for partial summary judgment is granted. Defendants Vasile and
Shellhammer's partial motion to dismiss is denied. Plaintiff's Eighth Amendment excessive force
and failure-to-intervene claims against Jones, Vasile, Shellhammer, Hopkins, Corrections
Sergeant John Doe, and Corrections Officer John Does 1 through 5 remain.
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