Barry v. McIntosh et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
MAMADOU BARRY,
Plaintiff,
v. 	9:24-CV-1581
(DNH/ML)
MS. MCINTOSH, Superintendent, Clinton
Corr. Facility; MR. FRENYA, Deputy of
Security, Clinton Corr. Facility; MR.
HARRIGAN, D.S.H., Clinton Corr. Facility;
and MR. GADWAY, Sergeant, Clinton
Corr. Facility,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
MAMADOU BARRY
Pro Se 	Plaintiff
Five Points Correctional Facility
Caller Box 119
Romulus, New York 14541
LETITIA A. JAMES 	ALEXANDRA L. GALUS, ESQ.
Attorney General for the State of New York 	Assistant Attorney General
Counsel for Defendants
The Capitol
Albany, New York 12224
MIROSLAV LOVRIC, United States Magistrate Judge
REPORT and RECOMMENDATION
Currently before the Court, in this civil rights action filed by Mamadou Barry
(“Plaintiff”) against defendants Ms. McIntosh, Mr. Frenya, Mr. Harrigan, and Mr. Gadway
(collectively “Defendants”), is Defendants’ motion for summary judgment pursuant to Fed. R.
Civ. P. 56 and partial motion to dismiss pursuant to Fed. R. Civ. P 12(b)(6). (Dkt. No. 30.) For
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the reasons set forth below, I recommend that Defendants’ motion for summary judgment be
granted and Plaintiff’s Complaint be dismissed. To the extent that Plaintiff’s medical
indifference claim against Defendant Gadway survives Defendants’ motion for summary
judgment, I recommend that Defendants’ partial motion to dismiss be denied.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Claims
At this procedural posture, Plaintiff asserts the following claims: (1) First Amendment
freedom of religion claims against Defendants McIntosh, Frenya, and Harrigan; (2) Eighth
Amendment excessive force claims against Defendant Gadway; (3) Eighth Amendment
deliberate medical indifference claims against Defendants Gadway, McIntosh, Frenya, and
Harrigan; and (4) Eighth Amendment conditions-of-confinement claims related to “42 Cell”
against Defendants McIntosh, Frenya, and Harrigan. (See generally 	Dkt. Nos. 1, 5.)
B. 	Defendants’ Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Defendants in
their Statement of Material Facts and not denied by Plaintiff in his response. (Compare 	Dkt. No.
30, Attach. 4, 	with 	Dkt. No. 37 [although Plaintiff responded to Defendants’ motion he did not
file a response to their Statement of Material Facts].)
1. 	Plaintiff is an incarcerated individual in the custody of the New York State
Department of Corrections and Community Supervision (“DOCCS”).
2. 	Plaintiff was housed at Clinton Correctional Facility (“Clinton C.F.”) during the
alleged incidents giving rise to his claims.
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3. 	At all relevant times, incarcerated individuals at Clinton C.F. were provided with
full access to the Inmate Grievance Program (IGP).1
4. 	The IGP is governed by state regulation (7 N.Y.C.R.R. §§ 701.1-701.11) and
administered through an agency-level directive (DOCCS Directive 4040).2
5. 	The IGP provides three levels of administrative review: (1) complaints to the
Incarcerated Grievance Review Committee (“IGRC”) at the facility-level; (2) appeals to the
facility superintendent; and (3) appeals to the Central Office Review Committee (“CORC”).3
6. 	For grievances alleging harassment (which includes harm sustained from facility
employee misconduct), the IGP follows a separate, expedited procedure.4
7. 	For grievances alleging staff harassment and misconduct, upon receipt, the IGP
directly forwards the grievance to the Superintendent, who has 25 calendar days to render a
response.5
8. 	If an incarcerated individual disagrees with the Superintendent’s response, they
must still appeal the decision to CORC to exhaust their administrative remedies.6
9. 	If an incarcerated individual fails to receive a response to an expedited grievance
from the Superintendent within 25 calendar days, the failure to respond may be construed as a
1 	(Dkt. No. 30, Attach. 3 at ¶ 20; Dkt. No. 30, Attach. 2 at ¶ 11.)
2 	(Dkt. No. 30, Attach. 3 at ¶ 5; 	see 	Dkt. No. 30, Attach. 2 at ¶ 4.)
3 	(Dkt. No. 30, Attach. 3 at ¶ 9; Dkt. No. 30, Attach. 2 at ¶ 5); 	see 	7 N.Y.C.R.R. § 701.5.
4 	(Dkt. No. 30, Attach. 3 at ¶ 12; Dkt. No. 30, Attach. 2 at ¶ 6); 	see 	7 N.Y.C.R.R. § 701.8.
5 	(Dkt. No. 30, Attach 3 at ¶ 12; Dkt. No. 30, Attach. 2 at ¶ 6); 	see 	7 N.Y.C.R.R. § 701.8.
6 	(Dkt. No. 30, Attach. 3 at ¶ 14; Dkt. No. 30, Attach. 2 at ¶ 6); 	see 	7 N.Y.C.R.R. §
701.8(h).
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denial, and the incarcerated individual can appeal to CORC to exhaust their administrative
remedies.7
10. 	All grievances, whether they concern allegations of harassment or not, must be
filed within 21 days of the alleged incident.8
11. 	Extensions of time to file a grievance may be granted, but only upon request in
writing within 45 days of the alleged incident.9
12. 	CORC is the final appellate level of the IGP.10
13. 	In his Complaint, Plaintiff alleges: (1) First Amendment free exercise claims
against Defendants McIntosh, Frenya, and Harrigan; (2) Eighth Amendment excessive force
claims against Defendant Gadway; (3) Eighth Amendment deliberate medical indifference
claims against Defendants Gadway, McIntosh, Frenya, and Harrigan; and (4) Eighth Amendment
conditions-of confinement claims against Defendants McIntosh, Frenya, and Harrigan.
14. 	Plaintiff’s claims are the proper subject for a grievance through DOCCS’ IGP.11
15. 	Plaintiff filed a grievance on August 4, 2022, entitled “sick call for eye,” which
the IGRC labeled grievance number CL-0547-22 (“Grievance No. CL-20547-22”).12
7 	(Dkt. No. 30, Attach. 3 at ¶¶ 14, 15; Dkt. No. 30, Attach. 2 at ¶ 6); 	see 	7 N.Y.C.R.R. §
701.8(h).
8 	(Dkt. No. 30, Attach. 3 at ¶ 9; Dkt. No. 30, Attach. 2 at ¶ 5); 	see 	7 N.Y.C.R.R. §§
701.5(a)(1), 701.8(a).
9 	(Dkt. No. 30, Attach. 3 at ¶ 9); 	see 	N.Y.C.R.R. § 701.6(g)(1)(i).
10 	(Dkt. No. 30, Attach. 3 at ¶ 16; Dkt. No. 30, Attach. 2 at ¶ 7.)
11 	(Dkt. No. 30, Attach. 3 at ¶¶ 18-19; Dkt. No. 30, Attach. 2 at ¶¶ 9-10.)
12 	(Dkt. No. 30, Attach. 3 at ¶ 23.)
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16. 	In Grievance No. CL-20547-22, Plaintiff grieved certain actions of the medical
department at Clinton C.F.13
17. 	Grievance No. CL-20547-22 did not contain any allegations against Defendants
Gadway, Frenya, McIntosh, or Harrigan, nor did it contain allegations against non-medical
staff.14
18. 	Grievance No. CL-20547-22 was the only grievance properly filed by Plaintiff at
the facility level that tangentially related to the claims set forth in paragraph 13.15
19. 	The IGRC issued a decision denying Grievance No. CL-20547-22 on September
14, 2022.16
20. 	On September 19, 2022, Plaintiff appealed the IGRC’s decision to the
Superintendent.17
21. 	Plaintiff did not mention any of the claims that he asserts in this action in his
appeal to the Superintendent.18
22. 	On October 3, 2022, the Superintendent issued a decision denying Plaintiff’s
appeal.19
13 	(Dkt. No. 30, Attach. 3 at ¶ 24.)
14 	(Dkt. No. 30, Attach. 3 at ¶ 25.)
15 	(Dkt. No. 30, Attach. 3 at ¶ 26.)
16 	(Dkt. No. 30, Attach. 3 at ¶ 27; Dkt. No. 30, Attach. 3 at 24.)
17 	(Dkt. No. 30, Attach. 3 at ¶ 28; Dkt. No. 30, Attach. 3 at 26.)
18 	(Dkt. No. 30, Attach. 3 at ¶ 28; Dkt. No. 30, Attach. 3 at 26.)
19 	(Dkt. No. 30, Attach. 3 at ¶ 29; Dkt. No. 30, Attach. 3 at 28.)
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23. 	On October 14, 2022, Plaintiff appealed the Superintendent’s decision to
CORC.20
24. 	In his appeal to CORC, Plaintiff alleged that Defendant Gadway sprayed his face
with chemicals and refused to allow Plaintiff to wash his face—Plaintiff then asked for
assistance from Defendants McIntosh and Harrigan, but nothing was done.21
25. 	The new claims that were raised on appeal were not investigated by CORC,
because incarcerated individuals may not raise new issues on a grievance appeal to CORC.22
26. 	Plaintiff did not properly submit any other grievances pertaining to the claims in
this matter.23
C. 	Parties’ Briefing on Defendants’ Motion
1. 	Defendants’ Motion for Summary Judgment and Partial Motion to
Dismiss
Generally, in support of their motion for summary judgment and partial motion to
dismiss, Defendants argue that (1) Plaintiff failed to properly exhaust his administrative remedies
before commencing this action; and (2) Plaintiff failed to state a claim upon which relief may be
granted with respect to his Eighth Amendment medical indifference claim against Defendant
Gadway because Plaintiff failed to allege facts plausibly suggesting the subjective component of
the claim. (See generally 	Dkt. No. 30, Attach. 5.)
20 	(Dkt. No. 30, Attach. 3 at ¶ 30; Dkt. No. 30, Attach. 3 at 30-33.)
21 	(Dkt. No. 30, Attach. 3 at ¶ 31; Dkt. No. 30, Attach. 3 at 30-33; Dkt. No. 30, Attach. 2 at
¶ 15.)
22 	(Dkt. No. 30, Attach. 2 at ¶ 17.)
23 	(Dkt. No. 30, Attach. 3 at ¶ 26; Dkt. No. 30, Attach. 2 at ¶ 18.) Defendants cited to Ms.
Seguin’s Declaration at paragraph 19 in support of this fact asserted. However, support for the
fact asserted is located in Ms. Seguin’s declaration at paragraph 18.
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More specifically, with respect to their first argument, Defendants assert that Plaintiff
failed to file a grievance regarding his conditions-of-confinement claims and free exercise claims
against Defendants McIntosh, Frenya, and Harrigan. (Dkt. No. 30, Attach. 5 at 10-11.) Further,
Defendants assert that Plaintiff’s excessive force claim against Defendant Gadway and deliberate
medical indifference claims against Defendants Gadway, McIntosh, Frenya, and Harrigan were
not properly grieved and therefore must be dismissed. (Id. at 11-13.) Defendants argue that
Plaintiff’s first reference to his claims that Defendants McIntosh, Gadway, Harrigan, and Frenya
denied him medical care or that Defendant Gadway used excessive force are in his appeal to
CORC, which is improper because it did not allow Clinton C.F. the ability to investigate his
claims and take appropriate measures to resolve the complaints. (Id.)
With respect to their second argument, Defendants assert that the Complaint alleges that
Defendant Gadway denied Plaintiff medical treatment after an alleged use of force incident on
July 25, 2022, then contradicts itself and alleges that Defendant Gadway took Plaintiff to the
infirmary after the alleged use of force incident. (Dkt. No. 30, Attach. 5 at 13-16.) Defendants
argue that hence, Plaintiff’s contradictory statements cannot establish an Eighth Amendment
deliberate medical indifference claim. (Id.)
2. 	Plaintiff’s Response in Opposition
Generally, in opposition to Defendants’ motion Plaintiff asserts the following two
arguments: (1) Plaintiff exhausted his administrative remedies, and (2) he alleged facts plausibly
suggesting a claim for medical indifference against Defendant Gadway. (See generally 	Dkt. No.
37 at 2-18.)
More specifically, Plaintiff argues that he exhausted all administrative remedies that were
available to him. (Dkt. No. 37 at 9.) Plaintiff alleges that: (1) on July 29, 2022, he wrote to
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Defendant McIntosh and informed her of the constitutional violations taking place, (2) on July
29, 2022, he wrote to Defendant Fenrya and informed him of the constitutional violations taking
place, (3) on July 29, 2022, he wrote to Defendant Harrigan and “reminded him” about the way
that officers were “acting reckless towards Plaintiff[’s] Constitutional rights,” (4) on July 30,
2022, he wrote a grievance regarding being assaulted by Defendant Gadway and two of his
officers, (5) on August 4, 2022, Plaintiff received a response from Defendant McIntosh, (6) on
August 6, 2022, Plaintiff wrote to Defendant McIntosh and complained about more
constitutional violations, (7) on August 6, 2022, Plaintiff wrote a letter to Defendant Frenya and
asked “that he put [a] cease to the unconstitutional practices that w[ere] taking place under his
authority,” (8) on August 6, 2022, Plaintiff wrote to Defendant Harrigan and asked that he direct
his officers to refrain from engaging in unconstitutional practices, (9) on August 11, 2022,
Plaintiff received a response from Defendant McIntosh, (10) on August 14, 2022, he “composed
two letters to” Defendant McIntosh, (a) the first letter informed her that Plaintiff had submitted
two grievances that he had not received acknowledgments for and requesed that she forward a
copy to the IGRC supervisor for the issuance of a number and investigation, and (b) the second
letter was “Plaintiff’s ‘Constructive Denial’, by I.G.R.C. to the Superintendent,” (11) on August
19, 2022, Plaintiff wrote to Defendant McIntosh in the form of a grievance that he submitted to
the IGRC Supervisor, (12) on August 23, 2022, Plaintiff wrote to Defendant McIntosh and
informed her of the unconstitutional acts taking place under her authority, (12) on August 23,
2022, Plaintiff received a response from Defendant McIntosh, (13) at some time Plaintiff
received a copy of the grievance dated August 19, 2022, that he submitted to Clinton C.F. IGRC
but Clinton C.F. IGRC refused to issue a grievance number because Plaintiff was no longer
housed at Clinton C.F., (14) on August 25, 2022, Plaintiff wrote to Defendant Frenya about his
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constitutional rights being violated, (15) on September 12, 2022, Plaintiff received a response
from the Upstate C.F. grievance supervisor addressing one of Plaintiff’s grievances, and (16) on
October 14, 2022, Plaintiff “perfected his ‘Constructive Denial’, to C.O.R.C.” (Dkt. No. 37 at 9-
11.) In addition, Plaintiff asserts that Ms. Wilcox can only testify regarding grievances that were
issued a grievance number and thus her knowledge is limited. (Dkt. No. 37 at 11.) Plaintiff
argues that he exhausted all administrative remedies that were available to him and Defendants
failed to meet their burden. (Id. at 11-12.)
With respect to his second argument, Plaintiff asserts that he adequately alleged a
medical indifference claim against Defendant Gadway. (Dkt. NO. 37 at 13-18.) Plaintiff asserts
that after Defendant Gadway “spread Plaintiff in the face and head area with unknowing
[chemicals]” at some time, he was escorted to the infirmary. (Id. at 13.) Plaintiff asserts that
while in the infirmary, Defendant Gadway “and two of his Officer[s] began to assault Plaintiff”
and refused to allow Plaintiff access to medical attention. (Id. at 13-14.)
3. 	Defendants’ Reply
Generally, in further support of their motion, Defendants assert the following four
arguments: (1) letters to facility officials are not grievances; (2) Plaintiff failed to properly utilize
the DOCCS grievance procedure; (3) the grievance procedure was available to Plaintiff, and (4)
Plaintiff cannot raise new facts in his response to overcome their motion to dismiss. (Dkt. No.
41.)
More specifically, with respect to their first argument, Defendants argue that the letters
Plaintiff attached to his opposition addressed to Defendants McIntosh, Frenya, and Harrigan are
not grievances and do not satisfy the grievance requirement. (Dkt. No. 41 at 3-4.) Defendants
argue that in addition, Plaintiff’s exhibits reflect responses that he received from Defendant
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McIntosh, which informed Plaintiff that his attempt to grieve a constitutional violation was
improper and must be sent to the grievance office. (Id.)
With respect to their second argument, Defendants assert that on August 19, 2022—while
he was housed at Upstate C.F.—Plaintiff sent a grievance to Clinton C.F.’s grievance office and
on September 26, 2022, Clinton C.F. responded by advising Plaintiff that the grievance must be
filed at the facility where Plaintiff resided. (Dkt. No. 41 at 4-6.) Defendants argue that before
Plaintiff received Clinton C.F.’s response, he filed a grievance with Upstate C.F.’s grievance
office regarding his Eighth Amendment conditions of confinement claims. (Dkt. No. 41 at 5.)
Defendants assert that Plaintiff received a letter that the grievance was outside of the 21-day
window within which grievances must be filed in and did not request an extension of time
(despite having 8 days to seek the extension). (Id.)
With respect to their third argument, Defendants assert that Plaintiff submitted a
grievance at Clinton C.F. on August 4, 2022, during the exact time that Plaintiff claims the
Clinton C.F. grievance office was not processing grievances. (Dkt. No. 41 at 6-7.) Moreover,
Defendants argue that Plaintiff’s claim that he tried to file two grievances at Clinton C.F. is
unsupported because Plaintiff had a practice of retaining copies of the documents that he sent
and received—which is reflected by the exhibits he attached to his opposition—and yet Plaintiff
failed to provide copies of the purported grievances that he allegedly attempted to file at Clinton
C.F. (Id.)
With respect to their fourth argument, Defendants assert that in the Complaint, Plaintiff
alleged that that Defendant Gadway denied him medical treatment but also stated that Defendant
Gadway took Plaintiff to the facility infirmary after an alleged excessive force incident. (Dkt.
No. 41 at 7-8.) Defendants argue that there were no other assertions in the Complaint regarding
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Defendant Gadway’s alleged denial of medical care. (Id.) Defendants argue that Plaintiff’s new
assertion in his opposition papers that Defendant Gadway instructed medical staff not to treat
Plaintiff while he was in the infirmary cannot be used to establish his Eighth Amendment
medical indifference claim. (Id.) As a result, Defendants argue that Plaintiff’s medical
indifference claim against Defendant Gadway should be dismissed. (Id.)
II. 	RELEVANT LEGAL STANDARDS
A. 	Standard Governing A Motion For Summary Judgment
Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that
there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence
is such that a reasonable jury could return a verdict for the [non-movant].” 	Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).24 	As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under the governing law . . . . Factual
disputes that are irrelevant or unnecessary will not be counted.” 	Anderson, 477 U.S. at 248.
In determining whether a genuine issue of material fact exists, the Court must resolve all
ambiguities and draw all reasonable inferences against the movant. 	Anderson, 477 U.S. at 255.
In addition, “[the movant] bears the initial responsibility of informing the district court of the
basis for its motion, and identifying those portions of the . . . [record] which it believes
demonstrate[s] the absence of any genuine issue of material fact.” 	Celotex v. Catrett, 477 U.S.
317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must
24 	As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to
create a genuine issue of fact.” 	Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation
omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply
show that there is some metaphysical doubt as to the material facts.” 	Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
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come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ.
P. 56(a), (c), (e).
Implied in the above-stated burden-shifting standard is the fact that, where a non-movant
willfully fails to respond to a motion for summary judgment, a district court has no duty to
perform an independent review of the record to find proof of a factual dispute–even if that non-
movant is proceeding 	pro se.25 	(This is because the Court extends special solicitude to the 	pro se
litigant largely by ensuring that he or she has received notice of the consequences of failing to
properly respond to the motion for summary judgment.)26 	As has often been recognized by both
the Supreme Court and Second Circuit, even 	pro se 	litigants must obey a district court’s
procedural rules.27
Of course, when a non-movant willfully fails to respond to a motion for summary
judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that
the motion is to be granted automatically.” 	Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Rather, as indicated above, the Court must assure itself that, based on the undisputed material
facts, the law indeed warrants judgment for the movant. 	Champion, 76 F.3d at 486; 	Allen v.
Comprehensive Analytical Grp., Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.);
N.D.N.Y. L.R. 56.1. What the non-movant’s failure to respond to the motion does is lighten the
movant’s burden.
25 	Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.)
(citing cases).
26 	Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases).
27 	Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).
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For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set
forth in a movant’s statement of material facts to be admitted, where (1) those facts are supported
by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that
statement28–even when the non-movant was proceeding 	pro se.29
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 of law under Local
Rule 7.1(a)(3).30 	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 that the argument
possesses facial merit, which has appropriately been characterized as a “modest” burden. 	See
N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate entitlement to the relief requested
therein . . . .”); 	Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct.
28 	Among other things, Local Rule 56.1 (previously contained in Local Rule 7.1(a)(3))
requires that the non-movant file a response to the movant’s Statement of Material Facts, which
admits or denies each of the movant’s factual assertions in matching numbered paragraphs, and
supports any denials with a specific citation to the record where the factual issue arises.
N.D.N.Y. L. R. 56.1.
29 	Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases); 	see also Prestopnik v. Whelan,
253 F. Supp. 2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to
“perform an independent review of the record to find proof of a factual dispute.”).
30 	See, 	e.g., 	Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31
(N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to
oppose several arguments by defendants in their motion for summary judgment as consent by
plaintiff to the granting of summary judgment for defendants with regard to the claims that the
arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); 	Devito v.
Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004)
(McCurn, J.) (deeming plaintiff’s failure to respond to “aspect” of defendant’s motion to exclude
expert testimony as “a concession by plaintiff that the court should exclude [the expert’s]
testimony” on that ground).
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30, 2009) (Suddaby, J.) (collecting cases); 	Este-Green v. Astrue, 09-CV-0722, 2009
WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases).
B. 	Standard Governing Exhaustion of Administrative Remedies
Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with
respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a); 	see also 	Ross v. Blake, 136 S. Ct. 1850, 1854-55 (2016) (“The [PLRA]
mandates that an inmate exhaust ‘such administrative remedies as are available’ before bringing
suit to challenge prison conditions.”). “[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). “There is no question that exhaustion is mandatory under the PLRA and that
unexhausted claims cannot be brought in court.” 	Jones v. Bock, 549 U.S. 199, 211 (2007).
The PLRA requires “proper exhaustion,” which means using all steps required by the
administrative review process applicable to the institution in which an inmate is confined and
doing so properly. 	Jones, 549 U.S. 	at 218 (citing 	Woodford v. Ngo, 548 U.S. 81, 88 (2006)); 	see
also 	Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates “‘using all
steps that the [government] agency holds out, and doing so properly’” (quoting 	Woodford, 548
U.S. at 90)). In New York State prisons, DOCCS has a well-established three-step IGP, in
which, (1) the inmate must file a grievance with the IGRC within twenty-one days of the alleged
occurrence, (2) the inmate must then appeal an adverse decision by the IGRC to the
superintendent of the facility within seven days after receipt of the IGRC’s response, and (3) the
inmate must then appeal an adverse decision by the superintendent to the CORC within seven
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days after receipt of the superintendent’s response. 7 N.Y.C.R.R. § 701.5; 	McGee v. McGready,
16-CV-4187, 2018 WL 2045094, at *2 (S.D.N.Y. Apr. 30, 2018).
“[W]hen a grievance concerns staff harassment, DOCCS procedures provide for an
expedited review that allows for the complaint to bypass IGRC review and proceed before the
Superintendent in the first instance.” 	Jackson v. Jackson, 16-CV-8516, 2021 WL 981849, at *4
(S.D.N.Y. Mar. 16, 2021); 	see 	7 N.Y.C.R.R. § 701.8. Under the expedited procedure, the
Superintendent has twenty-five days to respond to the grievance. 7 N.Y.C.R.R. § 701.8. If the
Superintendent fails to respond within twenty-five days, the inmate may appeal directly to
CORC. 	Id. 	§ 701.8(g). If the Superintendent does respond, the inmate has seven days from
receipt of the response to appeal to CORC. 	Id. 	§ 701.8(h). The IGP Supervisor has discretion to
grant exceptions to the time limits for filing or appealing grievances. 	See 	id. 	§ 701.6(g).
Whether or not the Superintendent timely responds, the procedure to appeal a determination of
the Superintendent to CORC is to file “a notice of decision to appeal (form #2133) with the
inmate grievance clerk.” 	Id. 	§ 701.8(g)-(h).31 	Inmates who have been transferred to a different
facility can get their appeal to the appropriate grievance clerk by “mail[ing] the signed appeal
form back to the IGP supervisor at the facility where the grievance was originally filed.” 	Id. 	§
701.6(h)(2).
“CORC is required to provide, through IGP staff, written confirmation that an appeal has
been received, and if the inmate does not receive such confirmation within forty-five days, he
‘should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted
to CORC.’” 	Ruiz v. Link, 20-CV-0235, 2022 WL 3020254, at *4 (S.D.N.Y. July 29, 2022)
31 	The procedure to appeal to CORC under the normal, non-expedited procedures is the
same. 7 N.Y.C.R.R. § 701.5(d)(1)(i).
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(quoting 7 N.Y.C.R.R. § 701.5(d)(3)(i)). The IGP requires CORC to respond to an appeal within
thirty days of receipt. 7 N.Y.C.R.R. § 701.5(d)(3)(ii). If CORC has received an appeal and fails
to rule within those thirty days, the inmate is considered to have exhausted his administrative
remedies and may file suit. 	Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020).
While the PLRA mandates exhaustion of administrative remedies, it also “contains its
own, textual exception to mandatory exhaustion.” 	Ross, 136 S. Ct. at 1858. More specifically,
section 1997e(a) provides that only those administrative remedies that “are available” must first
be exhausted. 42 U.S.C. § 1997e(a); 	see also 	Ross, 136 S. Ct. at 1858 (“[T]he exhaustion
requirement hinges on the availability of administrative remedies[.]”) (quotation marks and
citations omitted). In the PLRA context, the Supreme Court has determined that “availability”
means that “an inmate is required to exhaust those, but only those, grievance procedures that are
capable of use to obtain some relief for the action complained of.” 	Ross, 136 S. Ct. at 1859
(quotation marks and citations omitted).
The 	Ross 	Court identified three circumstances in which a court may find that internal
administrative remedies are not available to prisoners under the PLRA. 	Id. 	at 1859-60. 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. 	at 1859. “Next, an administrative scheme might be
so opaque that it becomes, practically speaking, incapable of use.” 	Id. 	Finally, an administrative
remedy is not “available” when “prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.” 	Id. 	at 1860. In
Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), the Second Circuit noted
that “the three circumstances discussed in 	Ross 	do not appear to be exhaustive[.]” The
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illustrations of unavailability in 	Ross 	nonetheless guide the Court’s inquiry. 	Mena v. City of New
York, 13-CV-2430, 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016).
Because non-exhaustion is an affirmative defense, the defendant bears the burden of
showing that a prisoner has failed to satisfy the exhaustion requirements. 	See 	Jones, 549 U.S. at
216. The plaintiff must then establish the IGP grievance procedure was unavailable to him under
Ross. 	Id.
C. 	Standard Governing Motions to Dismiss for Failure to State a Claim Upon
Which Relief May Be Granted
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. 	Jackson v. Onondaga Cnty., 549 F. Supp. 2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on 	de novo
review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a 	short and plain 	statement of the claim 	showing 	that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[ ]” an
entitlement to relief is often at the heart of misunderstandings that occur regarding the pleading
standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” 	Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
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held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant 	fair notice 	of
what the plaintiff’s claim is and the grounds upon which it rests.” 	Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).32
The Supreme Court has explained that such 	fair notice 	has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. 	Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 	629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 	Moore's Federal Practice 	§ 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. 	Rusyniak, 	629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); 	see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in 	Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. 	Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in 	Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” 	Twombly, 127 S. Ct. at 1968-69. Rather than turn on the 	conceivability 	of an
32 	Accord, 	Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); 	Hudson v.
Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); 	Powell v. Marine
Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (McAvoy, C.J.).
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actionable claim, the Court clarified, the “fair notice” standard turns on the 	plausibility 	of an
actionable claim. 	Id. 	at 1965-74. The Court explained that, while this does not mean that a
pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
pleading must contain at least “some factual allegation[s].” 	Id. 	at 1965. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. 	Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[a] claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” 	Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense . . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” 	Iqbal, 129 S. Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” 	id., it “does not impose a probability
requirement.” 	Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” 	Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. 	Iqbal, 129 S. Ct. at 1949 (internal citations and alterations omitted). Rule 8
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“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 	Id.
(citations omitted).
However, “in a 	pro se 	case, the court must view the submissions by a more lenient
standard than that accorded to ‘formal pleadings drafted by lawyers.’” 	Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (Sharpe, M.J.) (quoting 	Haines v. Kerner, 404 U.S. 519,
520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated
to “‘make reasonable allowances to protect 	pro se 	litigants’” from inadvertently forfeiting legal
rights merely because they lack a legal education. 	Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 475 (2d Cir. 2006) (quoting 	Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). As a
result, 	Twombly 	and 	Iqbal 	notwithstanding, the court must continue to “construe [a complaint]
broadly, and interpret [it] to raise the strongest arguments that [it] suggests.” 	Weixel v. Bd. of
Educ., 287 F.3d 139, 146 (2d Cir. 2002).
III. 	ANALYSIS
A. 	Motion for Summary Judgment
After carefully considering the matter, I recommend that Defendants’ motion for
summary judgment be granted for the reasons set forth in their memoranda of law (Dkt. No. 30,
Attach. 5 at 8-13; Dkt. No. 41 at 3-7) because Plaintiff failed to exhaust his available
administrative remedies. The following is intended supplement, not supplant, those reasons.
1. 	Exhaustion
Defendants submitted proof in admissible form by way of an affidavit from Donna
Wilcox, the custodian for all grievance-related records at Clinton C.F. (Dkt. No. 30, Attach. 3 at
¶ 4.) In her affidavit, Ms. Wilcox stated that she conducted a diligent search of DOCCS records
for any grievances filed by Plaintiff related to his claims in this action. (Id. at ¶ 22.) Ms. Wilcox
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affirmed that her search revealed that Plaintiff filed Grievance No. CL-20547-22, which alleged
that the medical department at Clinton C.F. refused to see or treat Plaintiff after he filed several
sick calls with the department. (Id. at ¶¶ 23-24.) Ms. Wilcox noted that Grievance No. CL-
20547-22 did not contain any allegations against Defendants (or any non-medical staff) and did
not put the grievance office on notice that Defendants allegedly assaulted Plaintiff or violated his
rights in any way. (Id. at ¶ 25.) Ms. Wilcox stated that the IGRC issued a decision denying
Grievance No. CL-20547-22 on September 14, 2022. (Dkt. No. 30, Attach. 3 at ¶ 27.) Finally,
Ms. Wilcox affirmed that on October 3, 2022, the Superintendent issued a decision denying
Plaintiff’s appeal on Grievance No. CL-20547-22. (Id. at ¶ 29.)
In addition, Defendants submitted proof in admissible form by way of an affidavit from
Rachael Seguin, the custodian of records maintained by CORC. (Dkt. No. 30, Attach. 2 at ¶ 3.)
In her affidavit, Ms. Seguin stated that she searched record appeals received by CORC filed by
Plaintiff related to his claims in this action. (Id. at ¶ 12.) Ms. Seguin affirmed that Plaintiff
appealed Grievance No. CL-20547-22 to CORC and that Plaintiff’s CORC appeal alleged—for
the first time—that (1) Plaintiff was sprayed in the eye by Defendant Gadway after a fight broke
out at Clinton C.F., (2) Defendant Gadway refused to allow Plaintiff to wash his face, and (3)
Plaintiff asked for assistance from Defendants McIntosh and Harrigan but nothing was done.
(Dkt. No. 30, Attach. 2 at ¶¶ 14-15; Dkt. No. 30, Attach. 3 at ¶ 31.) Ms. Seguin noted that
because these allegations were raised for the first time in Plaintiff’s appeal to CORC, they were
not investigated through the grievance process at the facility level. (Dkt. No. 30, Attach. 2 at ¶¶
16-17; Dkt. No. 30, Attach. 3 at ¶ 31.) Ms. Seguin affirmed that Plaintiff did not submit any
other CORC appeals pertaining to his claims in this action. (Dkt. No. 30, Attach. 2 at ¶ 18.)
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In opposition to Defendants’ motion, Plaintiff presented several documents to support his
assertion that he exhausted his administrative remedies. The documents set forth by Plaintiff fall
into the following four categories: (1) letters to DOCCS officials, (2) a grievance filed at the
incorrect facility, (3) an untimely grievance, and (4) uncorroborated claims of grievances that
prison officials did not file. (See generally 	Dkt. No. 37.)
a. 	Letters to DOCCS Officials
As Defendants set forth in their reply, letters to DOCCS officials do not satisfy the
grievance requirements.
It is axiomatic that “sending a grievance to the superintendent does not comply with
DOCCS inmate grievance procedure.” 	Dean v. Sheehan, 22-CV-0746, 2025 WL 1811183, at
*15 (N.D.N.Y. July 1, 2025) (Sannes, C.J.) (citing 	Beatty v. Goord, 210 F. Supp. 2d 250, 255-56
(S.D.N.Y. 2000) (“[W]riting letters to . . . the [s]uperintendent . . . [is] not sufficient to comply
with the Inmate Grievance Program”)). The Second Circuit has held that, “‘[A]lert[ing] the
prison officials as to the nature of the wrong for which redress is sought,’ does not constitute
‘proper exhaustion.’” 	Macias v. Zenk, 495 F.3d 37, 44 (2d Cir. 2007) (quoting 	Braham v.
Clancy, 425 F.3d 177, 183 (2d Cir. 2005); 	Woodford v. Ngo, 548 U.S. 81, 94-95 (2006)); 	see
Grant v. Annucci, 19-CV-1188, 2025 WL 1919475, at *4 (W.D.N.Y. July 11, 2025) (citing
Hernandez v. Coffey, 99-CV-11615, 2003 WL 22241431, at *3 (S.D.N.Y. Sept. 29, 2003)
(holding that the plaintiff’s “complaint letters are insufficient to exhaust his administrative
remedies”)) (“complaint letters do not satisfy exhaustion requirements.”); 	Mitchell v. Chappius,
750 F. Supp. 3d 123, 141 (W.D.N.Y. Sept. 25, 2024) (holding that a letter to the superintendent
regarding the injuries that the plaintiff sustained in an assault and requesting that the
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superintendent dismiss the misbehavior report “is not enough to constitute administrative
exhaustion.”).
Hence, Plaintiff’s (1) letter to Defendant McIntosh dated July 29, 2022 (Dkt. No. 37 at
89-91 [Exhibit Z]), (2) letter to Defendant Frenya dated July 29, 2022 (id. at 83-85 [Exhibit X]),
(3) letter to Defendant Harrigan dated July 29, 2022 (id. at 86-88 [Exhibit Y]), (4) letter to
Defendant McIntosh dated August 6, 2022 (id. at 79-82 [Exhibit V]), (5) letter to Defendant
Frenya dated August 6, 2022 (id. at 75-78 [Exhibit U]), (6) letter to Defendant Harrigan dated
August 6, 2022 (id. at 47-49 [Exhibit J]), (7) letter to Defendant McIntosh dated August 7, 2022
(id. at 38-39 [Exhibit D]), (8) letter to Defendant McIntosh dated August 14, 2022 (id. at 45-46
[Exhibit I]; 	id. 	at 92-93 [Exhibit BB]), (9) letter to Defendant McIntosh dated August 23, 2022
(id. at 50-51 [Exhibit K]), and (10) letter to Defendant Frenya dated August 25, 2022 (id. at 59-
60 [Exhibit O]), did not satisfy the grievance requirement because the recipients were DOCCS
officials and not the facility grievance office. (Dkt. No. 41 at 4.) Indeed, Plaintiff received a
response from Defendant McIntosh informing him that (1) his letter was not a grievance, and (2)
any grievance must be sent to the grievance office. (See 	Dkt. No. 37 at 40-43 [Exhibits E, F,
G].)
These letters do not constitute proper exhaustion.
b. 	Grievance Filed at Clinton While Housed at Upstate
Plaintiff submitted a grievance to Clinton C.F. grievance office that appears—in
Plaintiff’s handwriting—to be dated August 19, 2022. (Dkt. No. 37 at 52-53 [Exhibit L].) The
grievance has a stamp on it that states “Sept 12 2022 AM 7:51” and a stamp that states
“RECEIVED Sept 26 2022 IGP SUPERVISOR CLINTON.” (Id.)
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On September 26, 2022, Clinton C.F.’s grievance office returned Plaintiff’s grievance
and informed Plaintiff that any grievance must be submitted at the facility where Plaintiff is
housed. (Id. at 54 [Exhibit M].) Pursuant to 7 N.Y.C.R.R. § 701.5(a)(1) a grievance “may only
be filed at the facility where the inmate is housed even if it pertains to another facility.”
Plaintiff was transferred from Clinton C.F. to Upstate C.F. on or about August 23, 2022.
(Dkt. No. 30, Attach. 3 at 8.) Plaintiff appears to acknowledge that this grievance was received
after he was transferred to Upstate C.F. (Dkt. No. 37 at 5 [“Plaintiff direct[s] the Court[’s]
attention to the stamp on this grievance. [I]t read[s] “received September 26, 2022,[”] this is
after Plaintiff was transfer[r]ed to Upstate C.F.”].)
Hence, Plaintiff’s grievance filed at Clinton C.F. while he was housed at Upstate C.F.
was improperly filed and does not constitute proper exhaustion.33
c. 	Untimely Grievance
Plaintiff submitted a grievance to Upstate C.F. and was informed that his grievance was
“beyond the 21-day time frame.” (Dkt. No. 37 at 5, 61 [Exhibit P].) Plaintiff did not seek an
extension to file his grievance outside of the 21-day window. (Dkt. No. 30, Attach. 3 at ¶¶ 9,
26.)
This untimely grievance was not properly filed and thus does not constitute
administrative exhaustion.
33 	In addition, as set forth below in Part III.A.1.d. of this Report and Recommendation,
Plaintiff’s response was neither sworn before a notary public nor signed to under penalty of
perjury pursuant to 28 U.S.C. § 1746. (See generally 	Dkt. No. 37.) Hence Plaintiff’s allegations
regarding this grievance are inadmissible hearsay for purposes of this motion for summary
judgment.
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d. 	Claims of Grievances That Prison Officials Did Not File
An affidavit from a plaintiff recounting how his efforts to file a grievance were blocked
by jail personnel may be sufficient to overcome summary judgment based on a failure to exhaust
administrative remedies under the PLRA. 	Baltas v. Maiga, 119 F.4th 255, 267-68 (2d Cir.
2024); 	see also 	Reyes v. McGinnis, 00-CV-6352, 2003 WL 23101781, at *4-5 (W.D.N.Y. April
10, 2003) (relying on plaintiff's affidavit regarding attempts to file grievance; “prison officials
cannot have it both ways—they cannot obstruct an inmate’s pursuit of administrative exhaustion
on the one hand and then claim the inmate did not properly exhaust these remedies on the other”)
(citation and internal quotation marks omitted).
Plaintiff alleges that “[o]n July 30, 2022, he wrote a grievance regarding being assaulted
by [Defendant] Gadway, and two of his Officers, at the mess-hall, and at the infirmary, and
[Defendant] Gadway refused to allow Plaintiff to receive[ ] emergency medical” attention. (Dkt.
No. 37 at 2; 	accord 	Dkt. No. 37 at 4.) Plaintiff also alleges that on August 7, 2022, he submitted
a second grievance to the IGRC supervisor. (Dkt. No. 37 at 4.) However, neither Plaintiff’s
Complaint (Dkt. No. 1) nor Plaintiff’s opposition (Dkt. No. 37) are sworn under penalty of
perjury or sworn before a notary public. Hence, the allegations contained in the Complaint and
Plaintiff’s opposition are not admissible for purposes of rebutting the admissible evidence set
forth by Defendants. 	Niedzieko v. Del. & Hudson Ry. Co., 18-CV-0675, 2019 WL 1386047, at
*38 (N.D.N.Y. Mar. 27, 2019) (Suddaby, C.J.) (“The Court notes that much of the evidence
before it is inadmissible hearsay that cannot be considered on a motion for summary judgment.
For example, both parties submitted ‘declarations’ or ‘affidavits’ that were not signed before a
notary public or sworn to pursuant to 28 U.S.C. § 1746. In addition, Plaintiff’s Complaint was
not verified.”); 	see Sage v. HSBC Bank USA Nat’l Association as Trustee for Ace Securities
Corp., 18-CV-1494, 2021 WL 1062590, at *10 (N.D.N.Y. Mar. 19, 2021) (Suddaby, C.J.) (citing
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Niedzieko, 2019 WL 1386047, at *38) (“Inadmissible hearsay cannot be considered on a motion
for summary judgment.”); 	Davis v. City of Syracuse, 12-CV-0276, 2015 WL 1413362, at *2
(N.D.N.Y. Mar. 27, 2015) (Suddaby, J.) (citing Fed. R. Civ. P. 56(c)(4) (“An affidavit or
declaration used to . . . oppose a motion [for summary judgment] must be made on personal
knowledge, set out facts that would be admissible in evidence and show that the affiant or
declarant is competent to testify on matters stated.”)) (“On a motion for summary judgment,
denials of fact that are based on a lack of personal knowledge, mere information or belief, and/or
inadmissible evidence are insufficient to create a genuine dispute.”).
Moreover, even if the Court were to consider these assertions by Plaintiff, they fail to
provide the required corroboration to create a genuine issue of material fact sufficient to
withstand Defendants’ motion for summary judgment.
“‘[M]ere contention[] or speculation’ regarding mishandling of a grievance ‘do[es] not
create a genuine issue of material fact when there is no evidence to support the allegations.’”
Dean v. Sheehan, 2025 WL 1811183, at *13 (citing 	Jackson v. Moore, 21-CV-1001, 2023 WL
4710869, at *6 (N.D.N.Y. Apr. 14, 2023) (Baxter, M.J.)). “Rather, a plaintiff must provide some
corroboration of a claim that a grievance was submitted, such as evidence demonstrating when
the grievance was written, the content of the grievance, how the plaintiff attempted to file the
grievance, or that the plaintiff followed up with prison officials on the disposition of the
grievance.” 	Dean, 2025 WL 1811183, at *13 (citing 	See Simpson v. Price, 19-CV-1413, 2022
WL 336540, at *3 (N.D.N.Y. Feb. 4, 2022) (D’Agostino, J.); 	see also Stephanski v. Allen, 18-
CV-0076, 2020 WL 806331, at *9 (N.D.N.Y. Jan. 22, 2020) (Hummel, M.J.) (“Although [the
plaintiff] fails to proffer copies of the grievance(s) he attempted to file . . . , his claims are
supported by evidence suggesting that he attempted to file a grievance . . . including: (1) [the
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plaintiff]’s deposition testimony; (2) [the plaintiff]’s letter to the . . . Grievance Committee; (3)
[the plaintiff]’s letter to [a grievance supervisor]; (4) [a subsequent grievance]; and (5) [the
plaintiff]’s Appeal Statement referring the Superintendent’s decision to CORC for review.”),
report and recommendation adopted, 2020 WL 777268 (N.D.N.Y. Feb. 18, 2020) (Sannes, J.)).
Here, Plaintiff’s uncorroborated assertion that he filed at least two grievances at Clinton
C.F. is insufficient to rebut the evidence presented by Defendants. Plaintiff curiously included in
his opposition (1) copies of at least ten letters he sent to DOCCS officials (as set forth above in
Part III.A.1.a. of this Report and Recommendation), and (2) the improperly filed grievances (as
set forth above in Part III.A.1.b. and III.A.1.c. of this Report and Recommendation). As
Defendants set forth, “Plaintiff clearly retains copies of the documents he sends and receives.”
(Dkt. No. 41 at 6-7.) Notwithstanding Plaintiff’s practice of retaining copies of documents he
sends and receives, Plaintiff failed to submit a copy of the grievances he purportedly filed. (See
generally 	Dkt. No. 37.)
Further, as set forth by Defendants, the same time period during which Plaintiff allegedly
filed these grievances—on or about July 30, 2022, to August 7, 2022—is when Plaintiff filed
Grievance No. CL-20547-22. (Dkt. No. 41 at 6.) Hence, any contention that the Clinton C.F.
grievance office was not processing Plaintiff’s grievances is contradicted by the fact that
Grievance No. CL-20547-22 was processed by Clinton C.F. grievance office, assigned a number,
and investigated. (Dkt. No. 30, Attach. 3 at 20-24.)
In addition, to the extent that Plaintiff’s opposition is construed as arguing that he
believed he could file a grievance after he received an administrative reversal of the
Superintendent hearing decision, it is unavailing. (Dkt. No. 37 at 4 [“On August 7th 2022,
Plaintiff perfected his tier 3, appeal to the Commissioner of Special Housing, in Albany.”]; Dkt.
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No. 37 at 5-6 [“On October 4th 2022, Plaintiff[’s] tier 3, misbehavior report was reviewed and
reversed by ‘A. Rodriguez’, Director , Special housing.”].) An “appeal of the Superintendent’s
hearing decision cannot act as a substitute for filing a grievance and the appeal of the
Superintendent’s hearing decision does not toll the statutory deadlines for filing an IGRC
grievance.” 	Coleman v. Hamilton, 24-CV-0455, 2025 WL 2933461, at *8 (N.D.N.Y. Aug. 29,
2025) (Evangelista, M.J.) (citing 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a) (“The IGP supervisor may
grant an exception to the time limit for filing a grievance based on mitigating circumstances” but
an extension of time “may not be granted if the request was made more than 45 days after an
alleged occurrence.”)) (collecting cases), 	report and recommendation adopted 	2025 WL
2731047 (N.D.N.Y. Sept. 25, 2025) (Nardacci, J.).
For each of these reasons I find that Plaintiff failed to properly exhaust his administrative
remedies.
2. 	Availability of Administrative Remedies
Plaintiff does not appear to argue that administrative remedies were unavailable to him.
(See generally 	Dkt. No. 37.) However, out of special solicitude, the undersigned has searched
the record for potential arguments that administrative remedies may have been unavailable to
Plaintiff. 	See Jackson v. West, 23-CV-0306, 2025 WL 1033787, at *4 (N.D.N.Y. Feb. 20, 2025)
(Evangelista, M.J.), 	report and recommendation adopted, 2025 WL 814966 (N.D.N.Y. Mar. 14,
2025) (Kahn, J.).
The Supreme Court of the United States, in 	Ross, 	identified three circumstances in which
a court may find administrative remedies are not “available” for purposes of exhaustion under
the PLRA:
[A]n administrative procedure is unavailable when it operates as a simple
dead end—with officers unable or consistently unwilling to provide any
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29
relief to aggrieved inmates. Next, an administrative scheme might be so
opaque that it becomes, practically speaking, incapable of use—i.e., some
mechanism exists to provide relief, but no ordinary prisoner can navigate
it. And finally, a grievance process is rendered unavailable when prison
administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.
Ross, 578 U.S. at 643-44.
First, there nothing in the record to support that the “dead end” exception applies.
Williams v. Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016). Indeed, Plaintiff filed Grievance No.
CL-20547-22 on August 4, 2022. (Dkt. No. 30, Attach. 3 at 20-24); 	Jackson, 2025 WL 1033787,
at *12 (citing 	Matthews v. Sweeney, 17-CV-0503, 2025 WL 447734, at *7, *7 n.13 (N.D.N.Y.
Feb. 10, 2025) (Suddaby, J.)) (“Courts have rejected arguments that the grievance procedure was
a ‘dead end’ where the plaintiffs chose to participate in the grievance procedure in some way,
even in unrelated matters, concluding that such participation demonstrates that the plaintiffs did
not view the grievance procedure as a dead end.”). The fact that Plaintiff was able to grieve
other matters during the same time period demonstrates that administrative remedies were not a
dead end. 	See Jackson, 2025 WL 1033787, at *12.
Next, the opaqueness exception also does not apply to cure Plaintiff’s non-exhaustion.
Administrative relief is unavailable where “[t]he regulations simply do not contemplate the
situation in which the prisoner found himself, making it practically impossible for him to
ascertain whether and how he could pursue his grievance.” 	Williams, 829 F.3d at 124. In other
words, administrative relief is opaque when the procedure for the incarcerated person to procure
relief under the circumstances is “so confusing that . . . no reasonable prisoner can use it.” 	Id.
(quoting 	Ross, 578 U.S. at 644).
Ms. Wilcox declared that upon arrival to Clinton C.F., “every incarcerated individual
receives an Orientation Handbook, which includes a section about the grievance policies and
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30
procedures set forth in DOCCS Directive 4040. Among the many topics covered in the
Handbook, incarcerated individuals are taught how to file and appeal grievance complaints.”
(Dkt. No. 30, Attach. 3 at ¶ 7.) Ms. Wilcox also declared that from July 4, 2022, to July 17,
2022, Plaintiff attended and successfully completed the facility orientation at Clinton C.F. (Id. 	at
¶ 8; Dkt. No. 30, Attach. 3 at 11.) In addition, Ms. Wilcox declared that Title 7 of the Official
Compilation of Codes, Rules, and Regulations of the State of New York and DOCCS Directive
4040 were available in Clinton C.F.’s law library. (Dkt. No. 30, Attach. 3 at ¶ 5.)
Plaintiff does not claim that he was confused by the applicable exhaustion policy, and in
any event, any such conclusory claim would be insufficient to apply the opaqueness exception.
See, e.g., 	Jackson, 2025 WL 1033787, at *9 (holding that the grievance procedure was not
opaque where plaintiff claimed that he did not understand how to appeal, but the plaintiff failed
to seek assistance or pay attention at the facility’s IGP orientation and the plaintiff successfully
initiated the first step on several grievances).
Finally, Plaintiff was not thwarted from using the prison’s grievance process regarding
his claims through “machination, misrepresentation, or intimidation by prison officials.” 	Ross,
578 U.S. at 644. As this Court has stated, “general and conclusory statements that [an
incarcerated individual] was threatened are insufficient to raise a triable issue of fact as to the
unavailability of the grievance procedure because of intimidation by prison administrators.”
Gibbs v. Gadway, 19-CV-0281, 2019 WL 5191506, at *5 (N.D.N.Y. Oct. 15, 2019) (Stewart,
M.J.), 	report and recommendation adopted, 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020)
(Suddaby, C.J.) (quoting 	Lewis v. Wasielewski, 15-CV-0168, 2018 WL 4732755, at *6
(W.D.N.Y. July 10, 2018), 	report and recommendation adopted, 2018 WL 4692476 (W.D.N.Y.
Oct. 1, 2018)). “Allegations of threats are conclusory where a plaintiff’s allegation ‘does not
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31
indicate who threatened him, when he was threatened, or how he was threatened.’” 	Rodriguez v.
Cross, 15-CV-1079, 2017 WL 2791063, at *8 (N.D.N.Y. May 9, 2017) (Hummel, M.J.), 	report
and recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June 27, 2017) (Suddaby, C.J.)
(citing 	Johnson v. Fraizer, 16-CV-6096, 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1, 2016)).
As a result, I recommend that Defendants’ motion for summary judgment be granted and
Plaintiff’s claims be dismissed because Plaintiff failed to exhaust his administrative remedies.
B. 	Partial Motion to Dismiss
After carefully considering the matter, if the assigned District Judge rejects the above
recommendation and Plaintiff’s Eight Amendment medical indifference claim survives, I
recommend that he deny Defendants’ partial motion to dismiss Plaintiff’s Eighth Amendment
medical indifference claim against Defendant Gadway.
In his opposition to Defendants’ partial motion to dismiss, Plaintiff alleges that
Defendant Gadway and two of his officers assaulted Plaintiff while in infirmary and that
Defendant Gadway stated “you not going to get any medical attention until you tell me the
names of all the inmates that was involved in the fight, and the beating wont stop.” (Dkt. No. 37
at 14 [errors in original].) In addition, Plaintiff alleges that Defendant Gadway “refused to allow
the nurses to attend to [Plaintiff’s] injuries” and “denied Plaintiff medical treatment after [he]
assaulted [Plaintiff].” (Id. at 15; 	see id. 	at 16 [alleging that Defendant Gadway “refused to allow
the nurses to treat Plaintiff[’s] injuries that he caused.”].)
Contrary to Defendants’ assertion in their reply—that the allegations contained in
Plaintiff’s response “cannot now be used to establish his Eighth Amendment medical
indifference claim” (Dkt. No. 41 at 8)—the Court may consider allegations contained in
Plaintiff’s opposition as amendments to the Complaint to the extent that they are consistent with
the allegations contained in the Complaint. 	See 	Drake v. Delta Airlines, Inc., 147 F.3d 169, 170,
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32
n. 1 (2d Cir. 1998) (per curiam) (“[W]e deem Drake’s complaint to include the facts contained in
his memorandum of law filed in response to Delta’s 1996 motion to dismiss.”); 	Gill v. Mooney,
824 F.2d 192, 195 (2d Cir. 1987) (“In his affidavit submitted in opposition to defendants’ motion
to dismiss, Gill asserts that Mooney’s actions amounted to deliberate and willful indifference.
Liberally construed under 	pro se 	pleading standards, Gill’s allegations against Mooney involve
more than ordinary lack of due care for the prisoner’s interests or safety, . . . and therefore state a
colorable claim under the Eighth and Fourteenth Amendments.”) (internal quotation marks and
citation omitted); 	Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Sharpe,
M.J.) (“[I]n cases where a 	pro se 	plaintiff is faced with a motion to dismiss, it is appropriate for
the court to consider materials outside of the complaint to the extent they “are consistent with the
allegations in the complaint.”) (collecting district court cases), 	vacated on other grounds, 317 F.
Supp. 2d 160 (N.D.N.Y. 2004) (Hurd, J.).
Considering the additional allegations contained in Plaintiff’s opposition, I find that at
this juncture Plaintiff alleges facts plausibly suggesting a claim of deliberate medical
indifference pursuant to the Eighth Amendment against Defendant Gadway. As a result, I
recommend that, to the extent this claim survives Defendants’ motion for summary judgment,
Defendants’ partial motion to dismiss be denied.
ACCORDINGLY, it is respectfully
RECOMMENDED 	that Defendants’ motion for summary judgment (Dkt. No. 30) be
GRANTED 	and Plaintiff’s claims be 	DISMISSED 	for failure to exhaust his administrative
remedies; and it is further respectfully
RECOMMENDED 	that Plaintiff’s Complaint (Dkt. No. 1) be 	DISMISSED 	in its
entirety and the action closed; and it is further
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33
RECOMMENDED 	that to the extent the assigned District Judge rejects the
undersigned’s recommendation that Plaintiff’s Complaint be dismissed based on his failure to
exhaust administrative remedies, that Defendants’ partial motion to dismiss (Dkt. No. 30) be
DENIED 	to the extent that it seeks dismissal of Plaintiff’s Eighth Amendment deliberate
medical indifference claim against Defendant Gadway pursuant to Fed. R. Civ. P. 12(b)(6); and
it is further respectfully
ORDERED 	that the Clerk of the Court shall file a copy of this Report-Recommendation
on the docket of this case and serve a copy upon the parties in accordance with the local rules.34
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have
fourteen (14) days within which to file written objections to the foregoing report.35 	Such
objections shall be filed with the Clerk of the Court. 	FAILURE TO OBJECT 	TO THIS
REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing 	Small v. Sec. of Health & Human
Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
Dated: January __, 2026
Binghamton, New York
34 	The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein
in accordance with 	Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
35 	If you are proceeding 	pro se 	and 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 that the report, recommendation, and order was mailed to you to
serve and file objections. FED. 	R. 	CIV. P. 6(d). If the last day of that prescribed period falls on a
Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day
that is not a Saturday, Sunday, or legal holiday. FED. 	R. 	CIV. 	P. 6(a)(1)(C).
21
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Coleman v. Hamilton, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2933461
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Towuan COLEMAN, Plaintiff,
v.
J. HAMILTON and Barbosa, Defendants.
No. 9:24-CV-455 (AMN/PJE)
|
Signed August 29, 2025
Attorneys and Law Firms
Towuan Coleman, Edgecombe Residential Treatment
Facility, 611 Edgecombe Avenue, New York, New York
10032, Plaintiff pro se.
CHI-HSIN E. ENGELHART, ESQ., Assistant Attorney
General, NYS Office of The Attorney General, State Capitol,
Albany, New York 12224, Attorney for defendants.
REPORT-RECOMMENDATION AND ORDER 1
PAUL J. EVANGELISTA, UNITED STATES
MAGISTRATE JUDGE
*1 Plaintiff pro se Towuan Coleman (“plaintiff”), an inmate
who was, at all relevant times, in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983.
Plaintiff alleges that defendants J. Hamilton (“Hamilton”)
and Barbosa violated his First and Fourteenth Amendment
constitutional rights and defamed and slandered him under
New York State law. See Dkt. No. 9 at 1-2. 2 Presently
before the Court are (1) defendants motion for (a) summary
judgment on plaintiff's First Amendment retaliation claim
pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”)
56, and (b) dismissal of plaintiff's state law claims for failure
to state a cause of action pursuant to Rule 12(b)(1); and (2)
plaintiff's cross-motion for an evidentiary hearing on his First
Amendment retaliation claim. 3 See Dkt. No. 26; Dkt. No.
30-1 at 3. For the following reasons, it is recommended that
defendants’ motion be granted in its entirety and plaintiff's
cross-motion for an evidentiary hearing be denied.
I. Facts 4
In support of their motion, defendants filed a Statement of
Material Facts. See Dkt. No. 26-10. As will be discussed
below, plaintiff failed to properly respond to defendants’
Statement of Material Facts. See Dkt. No. 30-2.
A. N.D.N.Y. Local Rule 56.1
N.D.N.Y. Local Rule 56.1(b) requires that a party opposing
summary judgment file a response to the movant's Statement
of Material Facts, “admitting and/or denying each of the
movant's assertions in a short and concise statement, in
matching numbered paragraphs.” “The Court may deem
admitted any properly supported facts set forth in the
Statement of Material Facts that the opposing party does
not specifically controvert.” Id. (emphasis omitted). Here,
plaintiff filed a response to defendants’ motion for summary
judgment. See generally Dkt. No. 30. However, plaintiff's
submission is not properly responsive to defendants’
Statement of Material Facts because it does not admit or
deny defendants’ “assertions in a short and concise statement,
in matching numbered paragraphs.” N.D.N.Y. L.R. 56.1(b);
see Dkt. No. 30-2. Instead, plaintiff's response reiterates the
facts from the complaint, contests the factual attestations of
the sworn declarations submitted in support of defendants’
motion, and raises factual and legal arguments in opposition
to defendants’ motion. See Dkt. No. 30-2. Further, plaintiff
does not cite to the record for the facts he sets forth, in
violation of Local Rule 56.1(a). See id.; see also N.D.N.Y.
L.R. 56.1(a) (“Each fact listed shall set forth a specific citation
to the record where the fact is established.”).
*2 The Court is not required to “perform an independent
review of the record to find proof of a factual dispute.”
Prestopnik v. Whelan, 253 F. Supp. 2d 369, 371 (N.D.N.Y.
2003) (citing Amnesty Am. v. Town of W. Hartford, 288
F.3d 467, 470-71 (2d Cir. 2002)). Although the Local Rules
provide that the undersigned shall deem admitted any facts
that the nonmoving party fails to “specifically controvert,”
and pro se plaintiffs are expected to abide by the Local Rules,
pro se plaintiffs are also afforded special solicitude in this
District and Circuit. See N.D.N.Y. L.R. 56.1(b); see also
Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d
Cir. 2006) (per curiam).
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Accordingly, in deference to plaintiff's pro se status, the
Court will independently review the record when evaluating
defendants’ motions for summary judgment and dismissal,
and “treat [plaintiff's] opposition as a response to” defendants’
Statement of Material Facts. Robinson v. Mirza, No. 9:21-
CV-1322 (DNH/CFH), 2024 WL 4464280, at *7 (N.D.N.Y.
July 30, 2024), report and recommendation adopted sub
nom. Robinson v. Mizra, No. 9:21-CV-1322, 2024 WL
4249222 (N.D.N.Y. Sept. 20, 2024) (citing Johnson v. Lew,
No. 1:13-CV-1072 (GTS/CFH), 2017 WL 3822047, at *2
(N.D.N.Y. Aug. 30, 2017)) (“Out of special solicitude to
[the p]laintiff as a pro se civil rights litigant ... the Court
will treat his opposition as a response to [the d]efendant's
[ ]Statement ....”); see also Perry v. Ogdensburg Corr.
Fac., No. 9:10-CV-1033 (LEK/TWD), 2016 WL 3004658,
at *1 (N.D.N.Y. May 24, 2016) 5 (“[A]lthough [p]laintiff
failed to respond to the statement of material facts filed
by [d]efendants as required under Local Rule[s], the Court
would invoke its discretion to review the entire record when
evaluating the parties’ respective [m]otions for summary
judgment.”).
B. Undisputed Facts
Plaintiff was incarcerated at Mid-State Correctional Facility
(“Mid-State CF”) on September 29, 2023. See Dkt. Nos.
26-10 at 1; 26-2 at 3; 30-1 at 3. Plaintiff was incarcerated
at Gouverneur Correctional Facility (“Gouverneur CF”) on
October 12, 2023. See Dkt. Nos. 26-10 at 1; 30-10 at 1;
26-5 at 3. At all relevant times, there was a fully functioning
grievance procedure available to all residents at Mid-State CF
and Gouverneur CF. See Dkt. Nos. 26-2 at 1; 26-5 at 3; 26-8
at 3. At all relevant times, Hamilton was a sergeant at Mid-
State CF. See Dkt. No. 9 at 10-12; Dkt. No. 1-1 at 1. At all
relevant times, Barbosa was a hearing officer at Mid-State CF.
See Dkt. No. 9 at 11-12; Dkt. No. 1-1 at 2.
C. Plaintiff's Facts
Plaintiff alleges during the week of August 11, 2023, while
housed at Mid-State CF he was taken to Hamilton's office
and questioned about a number of “slips” Hamilton received
from confidential informants stating that plaintiff was “trying
to get” a fellow inmate named “J.J.” “cut.” Dkt. No. 9 at
4-5. Plaintiff denied knowing J.J. and stated that there was
no reason for anyone to get cut. See id. at 5. During the
week of September 11, 2023, plaintiff was again taken to
Hamilton's office and asked about “slips” Hamilton received
about plaintiff wanting to get another inmate, “DOT”, “cut.”
Dkt. No. 9 at 5-6. Plaintiff denied knowing DOT and stated,
“I have no need to cut anyone.” Id. at 6. Hamilton then
showed plaintiff several photographs of different inmates and
questioned plaintiff about the inmates in the photographs,
whether he knew any of them, and if he was in a gang. See
id. at 6-7. Plaintiff denied knowing any of the inmates in the
photographs and denied being in a gang. See id. at 7. Later that
week, Hamilton questioned plaintiff about the “kid [that got]
cut on the walkway the other day” and various gangs within
the prison. Id. at 7, see id. at 8. Plaintiff stated he did not “have
a clue what [Hamilton] was talking about” and denied being
in a gang. Id. at 8.
*3 On September 29, 2023, Hamilton awoke plaintiff in
his cell, escorted him to an empty room in the housing unit,
and proceeded to question him about a fellow inmate named
“Blick.” Dkt. No. 9 at 9. Hamilton claimed that Blick placed
a “hit” on one of the sergeants at Mid-State CF. Id. Plaintiff
denied knowing Blick or anything about the alleged hit. See
id. at 9-10. Later that day, Hamilton filed a misbehavior report
against plaintiff, charging him with violating prison rules on
threats, gangs, assault on staff, and violent conduct. See Dkt.
No. 1-1 at 1. The misbehavior report states that Hamilton,
“investigated a serious threat made against a sergeant at
[Mid-State CF]” and alleged that plaintiff and another inmate
planned to have a group of inmates assault a sergeant at Mid-
State CF on October 1, 2023. Id. The misbehavior report
further alleged that plaintiff was a “high-ranking member[ ]
of the [u]authorized group known as the ‘bloods’ ” and that
he “created a plan for other lower ranking members” in the
group to assault the sergeant in the mess hall. Id. Hamilton
based the report on “interviews from multiple confidential
informants who have provided confidential information that
has been reliable in the past.” Id. That same day plaintiff was
moved from Mid-State CF to the Marcy Correctional Facility
(“Marcy CF”). See Dkt. No. 9 at 10.
On October 4, 2023, a disciplinary hearing was held before
Barbosa. Dkt. No. 1-1 at 2. Plaintiff was found guilty on
charges of violent conduct, assault on staff, and gangs. See id;
also Dkt. No. 9 at 10. In reaching this determination, Barbosa
concluded that having
independently assessed the reliability
of the confidential information Sgt.
Hamilton relied upon to author
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this MBR [Misbehavior Report], I
find that the confidential sources
and confidential information are
substantially reliable, and I find their
allegations to be credible. In a nutshell,
[inmate] Coleman was not able to
establish that the information the
confidential sources provided was
erroneous.
Id. at 3.
Plaintiff asserts that on February 5, 2024, he filed a grievance
with Mid-State CF by addressing the grievance to “I.G.R.C.
at Midstate [CF]” and placing “an addressed envelope inside
[the] U.S. postal mailbox located at” Auburn CF. Dkt. No.
30. at 2. Plaintiff did not receive a response or reference
filing number to his February 5, 2024, grievance. See
id. On February 12, 2024, he appealed the grievance to
the Superintendent of Mid-State CF by submitting a letter
requesting that the Superintendent “render a decision” on his
grievance. See id. On February 21, 2024, after not receiving
a response from the Superintendent, plaintiff wrote a letter
“to the I.G.P.” of Mid-State CF requesting a decision on his
grievance. See id. at 2-3. After plaintiff did not receive a
response to his February 21, 2024, letter, he wrote to CORC.
See id. at 3. Plaintiff commenced this action when he did not
receive a response from CORC. See id.
D. Defendants’ Facts
Plaintiff's claims are the proper subject for a grievance. See
Dkt. No. 26-10 at 3. Plaintiff never filed any grievance
alleging a violation of his First Amendment rights stemming
from the alleged events of September 29, 2023. See Dkt.
No. 26-10 at 3. Plaintiff never filed any grievance against
Hamilton at either Mid-State CF or Gouverneur CF related to
the alleged events of September 29, 2023. See Dkt. Nos. 26-2
at 4; 26-5 at 4. Plaintiff did not file any grievances generally
while housed at Mid-State CF. See Dkt. Nos. 26-2 at 4. Neither
the Mid-State CF, nor the Gouverneur CF, grievance offices
received any written correspondence from plaintiff regarding
the alleged events of September 29, 2023. See Dkt. Nos. 26-2
at 4; 26-5 at 4. Plaintiff did not appeal any grievance alleging
First Amendment retaliation against Hamilton to CORC. See
Dkt. No. 26-8 at 4.
II. Motion for Summary Judgment
A. Legal Standard
On review of defendants’ motion for summary judgment, the
facts will be related in the light most favorable to plaintiff as
the nonmoving party. See Rattner v. Netburn, 930 F.2d 204,
209 (2d Cir. 1991) (“In assessing the record ... to determine
whether there is a genuine issue as to any material fact,
the court is required to resolve all ambiguities and draw
all factual inferences in favor of the party against whom
summary judgment is sought.”).
*4 A motion for summary judgment may be granted “if
the movant shows that 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). The moving party
bears the burden of demonstrating the absence of disputed
material facts by citing to “the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations (including those made for purposes
of the motion only), admissions, interrogatory answers, or
other materials.” FED. R. CIV. P. 56(c). A fact is material if it
“might affect the outcome of the suit,” as determined by the
governing substantive law; a “dispute about a material fact
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).
If the moving party meets this burden, the nonmoving party
“must set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 248 (citation omitted);
see Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).
“When ruling on a summary judgment motion, the district
court ... must resolve all ambiguities and draw all reasonable
inferences against the movant.” Dallas Aerospace, Inc. v. CIS
Air Corp., 352 F.3d 775, 780 (2d Cir. 2003) (citation omitted).
Still, the nonmoving party cannot rely on “mere speculation
or conjecture as to the true nature of the facts to overcome a
motion for summary judgment.” Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986) (citing Quarles v. Gen. Motors
Corp., 758 F.2d 839, 840 (2d Cir. 1985) (per curiam)); see also
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (“[M]ere
conclusory allegations or denials ... cannot by themselves
create a genuine issue of material fact where none would
otherwise exist.”) (citation omitted).
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Where a party seeks judgment against a pro se litigant, or a
pro se litigant moves for summary judgment, the Court must
afford the pro se litigant special solicitude. See Treistman, 470
F.3d at 477. As the Second Circuit explained,
[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. (citations 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.”) (citations and quotation
marks omitted).
B. Discussion
1. Arguments
Defendants argue that they are entitled to summary judgment
as matter of law on plaintiff's First Amendment retaliation
claim against Hamilton because plaintiff failed to exhaust
his administrative remedies. See Dkt. No. 26-11 at 9-10.
Defendants acknowledge that plaintiff's allegations stem from
a September 29, 2023, incident in which plaintiff claims that
Hamilton allegedly issued him a false misbehavior report for
refusing to provide Hamilton with information. See id. at 9.
Defendants also acknowledge that plaintiff's claims are the
proper subject for a grievance. See id. However, defendants
argue that plaintiff had “until October 20, 2023, to file a
grievance related to this incident, or until November 13,
2023, to request an extension of time” and plaintiff failed
to do either. Id. Defendants further argue that plaintiff did
not “appeal the denial or non-response of any grievance
concerning his retaliation claim against [ ] Hamilton to
CORC.” Id. Defendants’ note that plaintiff appealed the
Superintendent's hearing determination, but such an appeal
does not constitute a grievance and cannot be considered
proper exhaustion. See id. at 10.
*5 Alternatively, defendants argue that plaintiff admitted he
filed an untimely grievance and “did not begin the grievance
process until February 5, 2024, while housed at Auburn
Correctional Facility ... more than three months past the 21-
day deadline to file his grievance.” Dkt. No. 31 at 5. Finally,
defendants state that plaintiff “subsequently utilized IGP on
December 14, 2023, for an unrelated issue, demonstrating
his knowledge and familiarity with IGP, as well as the
exhaustion process through CORC.” Id. at 9-10. Concerning
plaintiff's state law claims, defendants argue that plaintiff's
state law claims should be dismissed for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1). See Dkt. No. No. 26-11
at 11-12 (citing N.Y. Correct. Law § 24).
In support of their motion, defendants submit copies of sworn
declarations from Chris Tapia, IGP Supervisor at Mid-State
CF; Laura Hutchins, IGP Supervisor at Gouverneur CF;
and Rachael Seguin, IGP Director for DOCCS. See Dkt.
Nos. 26-2; 26-5; 26-8. These declarations attest that plaintiff
was housed at each facility in September 2023 and October
2023; that plaintiff failed to file any facility-level grievance
against Hamilton or alleging retaliation by Hamilton; and that
plaintiff did not appeal any grievance to CORC. See Dkt. Nos.
26-2 at 3-4; 26-5 at 3-4; 26-8 at 3-4.
Plaintiff argues that he is “fully aware of the whole
grievance process, as well as having participated in an
unrelated evidentiary hearing concerning the exhaustion of
administrative remedies” and “took every step to exhaust his
administrative remedies before bring[ing] this action before
this Court.” Dkt. No. 30 at 1-2. Plaintiff states that if he
wanted to file a grievance with a facility at which he was
previously housed, after having been transferred to another
facility, he would have to mail a grievance to the first
facility where the incident giving rise to the grievance took
place. See Dkt. No. 30-2 at 2-3. Plaintiff states that this is
the exact process that he followed in filing the grievance
forming the basis of this action. See id. In support of this
argument, plaintiff attaches a copy of a purported grievance,
dated February 5, 2024, as well as copies of the letter
correspondence alleging that he did not receive a decision on
his grievance and attempting to appeal the grievance to each
level of the grievance procedure. See Dkt. No. 30 at 4-16.
On the other hand, plaintiff argues that the grievance
procedure at Mid-State CF “was not made available
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to him.” Dkt. No. 30-1 at 6. He also claims that he
believed he would be permitted to “begin to exhaust his
administrative remedies” after receiving an administrative
reversal on the Superintendent hearing decision and in
fact “began his grievance process after [he] received an
administrative reversal.” Id. at 6-7, 9. Plaintiff further argues
that Hamilton and the other employees at Mid-State CF
“worked together to prevent [him] from following through
with his litigation further preventing [him] the ability to
exhaust his administrative remedies.” Id. at 9-10. 6
2. Exhaustion of Administrative Remedies
a. Legal Standard
*6 The Prison Litigation Reform Act (“PLRA”) requires
prisoners to exhaust any available administrative remedies
before bringing an action for claims arising out of their
incarceration. See 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). Exhaustion is required even where the prisoner
seeks relief not available in the administrative grievance
process, such as money damages. See id. at 524. “To 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 is incarcerated.” Adams
v. Annucci, 537 F. Supp. 3d 475, 477-78 (W.D.N.Y. 2021);
see Jones v. Bock, 549 U.S. 199, 218 (2007) (explaining that
“to properly exhaust administrative remedies prisoners must
complete the administrative review process in accordance
with the applicable procedural rules ... rules that are defined
not by the PLRA, but by the prison grievance process itself.”)
(internal citations and quotations omitted).
“Failure to exhaust administrative remedies under the PLRA
is an affirmative defense, and thus the defendants have the
burden of proving that [the plaintiff's] claim has not been
exhausted[.]” Key v. Toussaint, 660 F. Supp. 2d 518, 523
(S.D.N.Y. 2009) (citations omitted). A defendant satisfies this
burden by “establishing ... that a grievance process exists[,]”
and that the plaintiff failed to use the grievance procedure.
Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d
Cir. 2015) (first citing Mojias v. Johnson, 351 F.3d 606,
610 (2d Cir. 2003), then citing Snider v. Melindez, 199 F.3d
108, 114 (2d Cir. 1999)). “However, once a defendant has
produced reliable evidence that such remedies were generally
available, and the plaintiff nevertheless failed to exhaust
those remedies, the plaintiff must then counter the defendant's
proof by showing that, as to him or her, the remedy was
unavailable.” Coleman v. Nolan, No. 9:15-CV-40 (ATB),
2018 WL 4732778, at *4 (N.D.N.Y. Oct. 2, 2018) (citing
Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y. 2013)).
Once it is determined that a plaintiff has failed to exhaust
his or her administrative remedies, “the Court must assess
whether administrative remedies were available to” the
plaintiff. Stephanski v. Allen, No. 9:18-CV-76 (BKS/CFH),
2020 WL 806331, at *7 (N.D.N.Y. Jan. 22, 2020), report
and recommendation adopted, 2020 WL 777268 (N.D.N.Y.
Feb. 18, 2020). “[T]he ultimate burden of proof with respect
to the exhaustion defense remains, at all times, with the
defendants.” Nelson v. Plumley, No. 9:12-CV-422 (TJM),
2015 WL 4326762, at *8 (N.D.N.Y. July 14, 2015) (citations
omitted). However, “ ‘the burden of production’ may shift to a
plaintiff when a court considers whether the grievance process
was unavailable[.]” Coleman, 2018 WL 4732778, at *4.
Here, there is no genuine dispute that, at all relevant times,
DOCCS had in place a three-step inmate grievance program.
See 7 N.Y.C.R.R. § 701.5. First, the inmate must file a
complaint with the Inmate Grievance Resolution Committee
(“IGRC”) within twenty-one (21) calendar days of the alleged
incident. See id. § 701.5(a). The IGRC then “has up to
16 calendar days after a grievance is filed to resolve [the
grievance] informally.” Id. § 701.5(b)(1). If there is no
informal resolution, the IGRC conducts a hearing “within
16 calendar days after receipt of the grievance” and issues
a written recommendation “within two working days” after
the conclusion of the hearing. Id. § 701.5(b)(2); (b)(3)(i).
Grievances filed after twenty-one days of the alleged incident
are generally deemed untimely, however, an inmate may
request an extension of time to file a grievance within
forty-five days of the alleged incident “based on mitigating
circumstances.” Id. §§ 701.5(a); 701.6(g)(1)(i)(a).
Second, if the inmate is dissatisfied with the IGRC's decision,
the inmate may appeal the IGRC's decision to the facility's
superintendent. See 7 N.Y.C.R.R. § 701.5(c)(1). To initiate
such appeal, the inmate “must complete and sign the
appeal section on the IGRC response form ... and submit
it to the grievance clerk within seven calendar days after
receipt of the IGRC's written response.” Id. For matters
concerning institutional issues, “the superintendent shall
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render a decision on the grievance and transmit said decision,
with reasons stated, to the grievant, the grievance clerk, and
direct party, if any, within 20 calendar days from the time
the appeal was received.” Id. § 701.5(c)(3)(ii). “If a [IGRC]
decision is not implemented within 45 days, the grievant
may appeal to CORC citing lack of implementation as a
mitigating circumstance.” Id. § 701.5(c)(4). Alternatively,
“[i]f no appeal is filed upon denial by the IGRC, it will
be presumed that the grievant or direct party accepts the
committee's recommendation.” Id. § 701.5(c)(1).
*7 Third, the inmate may appeal the superintendent's
decision to the CORC. See 7 N.Y.C.R.R. § 701.5(d)(1)(i).
To initiate an appeal to CORC, the inmate “must complete
and sign [the necessary forms] and submit [them] to the
grievance clerk within seven calendar days after receipt of
the superintendent's written response to the grievance.” Id.
The IGRC Supervisor “must forward appeals within seven
calendar days to ... CORC.” Id. § 701.5(d)(1)(ii). Upon receipt
of an appeal, CORC “shall review each appeal, render a
decision on the grievance, and transmit its decision to the
facility, with reasons stated, for the grievant, the grievance
clerk, the superintendent, and any direct parties within 30
calendar days from the time the appeal was received.” Id.
§ 701.5(d)(3)(ii). It is only after CORC renders a final
decision, and the inmate receives that final decision, that the
administrative remedies available to the inmate/claimant are
exhausted. See Torres v. Carry, 672 F.Supp. 2d 338, 344
(S.D.N.Y. 2009).
b. Analysis
Viewing the evidence in the light most favorable to the
plaintiff as the non-moving party and affording him special
solicitude, plaintiff failed to rebut or raise a “genuine dispute
as to any material fact” regarding defendants’ assertion that
he did not properly exhaust his administrative remedies
concerning his claims that Hamilton retaliated against him by
filing a misbehavior report on September 29, 2023. FED. R.
CIV. P. 56(a); see Wright, 554 F.3d at 266; Hicks, 593 F.3d
at 166.
The parties agree that plaintiff attempted to file a grievance
on February 5, 2024, alleging that Hamilton retaliated against
him by filing a misbehavior report on September 29, 2023.
See Dkt. No. 31 at 5; No. 30 at 4-16. As the alleged
incident occurred on September 29, 2023, plaintiff had until
October 20, 2023, to file a grievance, or until November 12,
2023, to request an extension of time to file a grievance.
See 7 N.Y.C.R.R. §§ 701.5(a); 701.6(g)(1)(i)(a). However,
plaintiff neither filed a grievance by October 20, 2023,
nor requested an extension of time to file a grievance by
November 13, 2023. Moreover, plaintiff has not alleged
that he attempted to file a grievance by October 20, 2023,
or request an extension of time to file a grievance by
November 13, 2023, or allege any mitigating circumstances
that prevented him from doing so. See generally Dkt. Nos.
30, 32. Accordingly, the undersigned concludes that plaintiff's
February 5, 2024, grievance is untimely, and plaintiff failed
to exhaust his administrative remedies prior to commencing
this action. See 7 N.Y.C.R.R. §§ 701.5(a); 701.6(g)(1)(i)
(a); Mont v. Wells, No. 9:22-CV-215 (DNH/ATB), 2023
WL 5018571, at *7, n.7 (N.D.N.Y. June 5, 2023), report
and recommendation adopted, No. 9:22-CV-215, 2023 WL
4361232 (N.D.N.Y. July 6, 2023) (quoting Harris v. Buskey,
No. 9:21-CV-470 (LEK/CFH), 2022 WL 2663421, at *1
(N.D.N.Y. July 11, 2022) (quoting Adams v. Ohara, No.
16-CV-527 (GTS/ATB), 2019 WL 652409, at *7 (N.D.N.Y.
Feb. 15, 2019))) (“[F]iling an untimely grievance without
subsequently obtaining a finding of mitigating circumstances
is insufficient to exhaust one's available administrative
remedies.”); Ferguson v. Mason, No. 9:19-CV-927 (GLS/
ATB), 2021 WL 862070, at *9 (N.D.N.Y. Jan. 7, 2021),
report and recommendation adopted, No. 9:19-CV-927
(GLS/ATB), 2021 WL 531968 (N.D.N.Y. Feb. 12, 2021)
(quoting Adams, 2019 WL 652409, at *7 (same); Elleby
v. Martingano, No. 9:20-CV-693 (LEK/ML), 2022 WL
18604, at *2 (N.D.N.Y. Jan. 3, 2022)) (quoting Ruggiero
v. County of Orange, 467 F.3d 170, 176 (2d Cir. 2006))
(“[U]ntimely or otherwise procedurally defective attempts
to secure administrative remedies do not satisfy the PLRA's
exhaustion requirement.”);; Feliz v. Johnson, No. 9:17-
CV-1294 (DNH/ATB), 2019 WL 5197216, at *4 (N.D.N.Y.
June 6, 2019), report and recommendation adopted, 2019
WL 3491232 (N.D.N.Y. Aug. 1, 2019) (citations omitted)
(“[I]f a plaintiff fails to follow each of the required steps
of the IGP, including receipt of a decision from CORC,
prior to commencing litigation, he has failed to exhaust his
administrative remedies as required under the PLRA.”);
*8 To the extent that plaintiff believed he could file a
grievance after he received an administrative reversal of
the Superintendent hearing decision and in fact “begun
his grievance process after [he] received an administrative
reversal” [,] this argument is equally unavailing. Dkt. No.
30-1 at 6-7, 9. Plaintiff's appeal of the Superintendent's
hearing decision cannot act as a substitute for filing a
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grievance and the appeal of the Superintendent's hearing
decision does not toll the statutory deadlines for filing an
IGRC grievance. See 7 N.Y.C.R.R. § 701.6(g)(1)(i)(a) (“The
IGP supervisor may grant an exception to the time limit
for filing a grievance based on mitigating circumstances”
but an extension of time “may not be granted if the request
was made more than 45 days after an alleged occurrence.”);
Thomas v. Delaney, No. 9:17-CV-1023 (GLS/CFH), 2019
WL 4247807, at *10 (N.D.N.Y. Aug. 13, 2019), report and
recommendation adopted, No. 9:17-CV-1023 (GLS/CFH),
2019 WL 4242268 (N.D.N.Y. Sept. 6, 2019) (quoting Barker
v. Smith, No. 16-CV-76 (NSR), 2017 WL 3701495, at *3
(S.D.N.Y. Aug. 25, 2017) (quoting Scott v. Gardner, 287
F. Supp. 2d 477, 489 (S.D.N.Y. 2003), on reconsideration
in part, 344 F. Supp. 2d 421 (S.D.N.Y. 2004), and on
reconsideration in part, 2005 WL 984117 (S.D.N.Y. Apr.
28, 2005))) (“Courts in this District have held that [t]hough
a disciplinary appeal is sufficient to exhaust a claim that
Plaintiff was deprived of due process at a disciplinary hearing,
allegations of staff misconduct related to the incidents giving
rise to the discipline must be grieved.”) (internal quotation
marks omitted); Labounty v. Johnson, 253 F. Supp. 2d
496, 501 (W.D.N.Y. 2003) (citation omitted) (“An appeal
from a disciplinary hearing does not satisfy the grievance
exhaustion requirement for a [constitutional] claim, even if
the hearing is based on the same set of facts underlying
the grievance.”); Toliver v. Adner, No. 9:18-CV-1420 (DNH/
ATB), 2019 WL 3503059, at *3 (N.D.N.Y. June 3, 2019),
report and recommendation adopted, No. 9:18-CV-1420
(DNH/ATB), 2019 WL 3497099 (N.D.N.Y. Aug. 1, 2019),
aff'd, 836 F. App'x 68 (2d Cir. 2020) (quoting Kimbrough v.
Fischer, No. 9:13-CV-100 (FJS/TWD), 2014 WL 12684106,
at *6 (N.D.N.Y. Sept. 29, 2014)), report and recommendation
adopted, No. 9:13-CV-100 (FJS/TWD), 2016 WL 660919
(N.D.N.Y. Feb. 18, 2016) (“The grievance process is separate
from the process of appealing the outcome of a disciplinary
hearing, and an inmate ‘cannot adequately exhaust his
remedies for PLRA purposes through his administrative
appeal of the hearing decision; he must separately grieve the
[defendant's] alleged misconduct ....”).
As discussed above, plaintiff stated that he is “fully aware of
the whole grievance process, as well as having participated in
an unrelated evidentiary hearing concerning the exhaustion of
administrative remedies” and “took every step to exhaust his
administrative remedies before bring[ing] this action before
this Court.” Dkt. No. 30 at 1-2. However, plaintiff's statement
that if he wanted to file a grievance with Mid-State CF after
having been transferred to another facility, he would have to
mail the grievance to Mid-State CF is legally incorrect. See
Dkt. No. 30-2 at 2-3. Here, plaintiff states that while housed
at Auburn CF, he attempted to file a grievance with Mid-
State CF by mailing the grievance to Mid-State CF. Dkt. No.
30. at 2. The regulations provide that a grievance “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).
“Therefore, these mistaken beliefs do not excuse Plaintiff's
failure to exhaust.” 7 Porter v. Uhler, No. 9:17-CV-47 (MAD/
TWD), 2019 WL 1292226, at *5 (N.D.N.Y. Mar. 21, 2019),
aff'd, 790 F. App;x 329 (2d Cir. 2020) (citing Ross, 578
U.S. at 641); Jackson v. West, No. 9:23-CV-306 (LEK/PJE),
2025 WL 1033787, at *10 (N.D.N.Y. Feb. 20, 2025), report
and recommendation adopted, No. 9:23-CV-306 (LEK/PJE),
2025 WL 814966 (N.D.N.Y. Mar. 14, 2025) (“Plaintiff's
failure to avail himself of the grievance procedure is based on
his ignorance of the training and failure to seek out resources
rather than the opacity of the procedure.”); Kendall v. Cuomo,
No. 1:12-CV-3438 (ALC/RLE), 2017 WL 4162338, at *5
(S.D.N.Y. Sept. 19, 2017) (citation omitted) (“[I]gnorance
regarding the proper grievance procedure ... does not change
the fact that those remedies were, nevertheless, available.”);
Smith v. City of New York, No. 12 CIV. 3303 (CM), 2013 WL
5434144, at *25 (S.D.N.Y. Sept. 26, 2013) (“[I]gnorance is
not an excuse where he had access to materials to learn about
the grievance procedure, he was not incorrectly instructed
about the grievance procedure, and prison officials did not do
anything that objectively prevented him from availing himself
of that procedure.”). Notwithstanding the timeliness issue
discussed above, based on his own statements and actions,
plaintiff has not satisfied the first step the of the grievance
procedure because he did not file a grievance at Auburn
CF concerning the incident that occurred at Mid-State CF.
See 7 N.Y.C.R.R. § 701.5(a)(1). As such, plaintiff failed to
satisfy the first step of the grievance procedure and exhaust
his administrative remedies. See Feliz, 2019 WL 5197216, at
*4.
*9 Accordingly, the undersigned concludes that plaintiff
failed to exhaust his administrative remedies prior to
commencing this lawsuit because he filed an untimely
grievance and did not follow the proper procedure. See 7
N.Y.C.R.R. §§ 701.5(a); 701.6(g)(1)(i)(a); Mont, 2023 WL
5018571, at *7, n.7; Labounty, 253 F. Supp. 2d at 501; Toliver,
2019 WL 3503059, at *3; Porter, 2019 WL 1292226, at *5;
Feliz, 2019 WL 5197216, at *4.
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3. Availability of Administrative Remedies
As plaintiff alleges that the grievance procedure was
unavailable to him, and Hamilton and others prevented him
from utilizing the grievance system, the undersigned must
next assess whether administrative remedies were available
to plaintiff.
a. Legal Standard
To successfully allege unavailability, “[a]n inmate must
point to some affirmative action by a prison official that
prevented the inmate from availing himself of the grievance
procedures.” Martinaj v. Uhler, No. 9:18-CV-257 (BKS/
DJS), 2021 WL 3793769, at *7 (N.D.N.Y. 9Aug. 26, 2021)
(citing Grafton v. Hesse, 783 F. App'x 29, 31 (2d Cir. 2019)
(citing Ruggiero, 467 F.3d at 178)) (“We have held that where
there has been no affirmative action by prison staff actually
preventing prisoners from pursuing administrative remedies,
those remedies are not unavailable under the PLRA.”).
Examples of prison officials’ affirmative acts include verbal
and physical threats of retaliation, denial of “forms and
writing materials, and a refus[al] to accept or forward [the]
plaintiff's appeals.” Perez v. Furina, No. 9:10-CV-518 (TJM/
CFH), 2016 WL 1237863, at *3 (N.D.N.Y. Jan. 19, 2016),
report and recommendation adopted, No. 9:10-CV-518, 2016
WL 1238243 (N.D.N.Y. Mar. 29, 2016) (citing Ruggiero,
467 F.3d at 175); see also Amador v. Andrews, 655 F.3d 89,
103 (2d Cir. 2011) (holding that “verbal and physical threats
of retaliation, physical assault, denial of grievance forms or
writing implements, and transfers constitute such affirmative
action.”) (first citing Hemphill v. New York, 380 F.3d 680,
688 (2d Cir. 2004) overruled on other grounds by Hemphill
v. New York, 595 U.S. 140 (2022), then citing Ziemba v.
Wezner, 366 F.3d 161, 162 (2d Cir. 2004)); see also Cicio
v. Alvarez, No. 19-CV-9883 (CS), 2022 WL 1003796, at *5
(S.D.N.Y. Apr. 4, 2022) (“Specific threats of retaliation or
intimidation by prison employees can render administrative
remedies unavailable.”) (quoting Lutz v. Francisco, No. 9:20-
CV-240 (GTS/DJS), 2020 WL 9264825, *5 (N.D.N.Y. Dec.
10, 2020)).
“[T]he PLRA requires ‘proper exhaustion,’ which ‘means
using all steps that the agency holds out, and doing
so properly ....’ ” Ruggiero, 467 F.3d at 176 (2d Cir.
2006) (quoting Woodford, 548 U.S. at 90) (quoting Pozo
v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002))
(additional internal quotation marks omitted). The PLRA's
“exhaustion requirement hinges on the ‘availability’ of
administrative remedies.” Ross, 578 U.S. at 642 (brackets
omitted) (quoting Booth v. Churner, 532 U.S. 731, 738
(2001)). “An inmate ... must exhaust available remedies, but
need not exhaust unavailable ones.” Id. Availability means
“an inmate is required to exhaust those, but only those,
grievance procedures that are ‘capable of use’ to obtain ‘some
relief for the action complained of.’ ” Id. (quoting Booth, 532
U.S. at 738).
*10 There are “three kinds of circumstances in which an
administrative remedy ... is not capable of use to obtain
relief.” Ross, 578 U.S. at 643. First, “an administrative
procedure is unavailable when (despite what regulations or
guidance materials may promise) it operates as a simple
dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates.” Id. (citing Booth,
532 U.S. at 736). “Next, an administrative scheme might be
so opaque that it becomes, practically speaking, 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. at 644.
The Second Circuit has noted that “the three circumstances
discussed in Ross do not appear to be exhaustive,” but
“illustrations of unavailability in Ross nonetheless guide the
Court's inquiry.” Thomas v. Waugh, No. 9:13-CV-321 (MAD/
TWD), 2018 WL 3121622, at *10 (N.D.N.Y. Feb. 28, 2018),
report and recommendation adopted, No. 9:13-CV-00321,
2018 WL 1508563 (N.D.N.Y. Mar. 27, 2018) (first citing
Williams, 829 F.3d at 123 n.2 (2d. Cir. 2016), then citing
Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL
3948100, at *4 (S.D.N.Y. July 19, 2016)).
b. Unavailability Generally
Plaintiff raises two arguments regarding availability. First,
plaintiff argues that the grievance procedure at Mid-State CF
“was not made available to him” generally. Dkt. No. 30-1 at
6. As plaintiff fails to state whether the grievance procedure
was unavailable immediately following the September 29,
2023, incident or when he attempted to file his grievance on
February 5, 2024, the undersigned will assess both arguments.
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i. September 29, 2023
Plaintiff's argument that the grievance procedure was
unavailable on September 29, 2023, or in the twenty-one
days thereafter, amounts to a baseless conclusion. Plaintiff (1)
fails to provide any further details or explanation of how the
grievance procedure was unavailable to him at this time and
(2) acknowledges that he did not attempt to file a grievance
or request an extension of time to file a grievance at this
time. See generally Dkt. Nos. 9, 30. Further, this argument
is contradicted by plaintiff's argument discussed above, that
he was waiting for his appeal of the Superintendent hearing
decision to be resolved before filing a grievance and that he
only filed a grievance after the hearing decision was reversed.
See Dkt. No. 30 at 6-7, 9. Plaintiff cannot simultaneously
claim that the grievance procedure was unavailable to him but
claim to have held off on using the grievance procedure until
his disciplinary appeal was determined.
ii. February 5, 2024
Plaintiff's argument that the grievance procedure was
unavailable when he attempted to file a grievance on February
5, 2024, is also without merit for several reasons. First, as
will be discussed below, plaintiff has not alleged that he
was thwarted from “taking advantage of a grievance process
through machination, misrepresentation, or intimidation.”
Ross, 578 U.S. at 644. Rather, plaintiff states that prison
officials at Mid-State CF ignored or refused to accept the
grievance and appeals he mailed to the facility. See Dkt. No.
30 at 1-3. Second, assuming arguendo, that the Mid-State CF
prison official's ignorance or refusal to consider his February
5, 2024, grievance could be viewed as “machination” or
“misrepresentation,” this argument still does not excuse
plaintiff's failure to follow the proper grievance procedure or
file a timely grievance. See 7 N.Y.C.R.R. § 701.5(a); Feliz,
2019 WL 5197216, at *4. Finally, whether the grievance
procedure was available to plaintiff in February 2024 is
irrelevant because the time to file a grievance expired and
plaintiff did not request an extension of time to file his
grievance. See id.
c. Purported Threats and Intimidation
*11 Second, plaintiff argues that Hamilton and the
other employees at Auburn CF or Mid-State CF “worked
together to prevent [him] from following through with his
litigation further preventing [him] the ability to exhaust his
administrative remedies.” Dkt. No. 30-1 9-10. In making
this argument, plaintiff references an inmate that was housed
at the Mohawk Correctional Facility and transferred to the
Marcy CF “where he later died.” Id. at 10. Plaintiff states
that “we saw how ‘third party’ information travels from one
correctional facility to the other facility within the facility
hub.” Id. Affording plaintiff due solicitude, he could be
arguing that he generally feared for his life and safety if
he provided information to Hamilton. Yet, plaintiff does not
state, and the record does not indicate, that this “threat”
contained any reference to the grievance procedure, any
grievance plaintiff filed, or that he decided against filing
a grievance because he feared for his safety. See Scott v.
Cambisi, No. 20-CV-6388 (MWP), 2024 WL 867102, at *11
(W.D.N.Y. Feb. 29, 2024) (“Although acts of intimidation
need not be tied narrowly to a particular grievance, they
cannot be wholly unrelated to the grievance process.”)
(internal citations and quotations omitted).
Further, plaintiff fails to specify any “affirmative action by a
prison official that prevented [him] from availing himself of
the grievance procedures.” Martinaj, 2021 WL 3793769, at
*7. Plaintiff does not describe any type of verbal or physical
threat, allege that he was denied forms or writing materials,
or claim that Hamilton or other corrections staff refused to
forward his grievance or threatened to transfer him to another
facility. See Perez, 2016 WL 1237863, at *3; Amador, 655
F.3d at 103. Plaintiff does not allege threats of violence,
retaliation, or any form of retribution against him if he chose
to pursue a grievance, nor does plaintiff contend that he was
in fear of retaliation or retribution or that such fear deterred
him from filing a grievance. See Scott, 2024 WL 867102, at
*11 (“The deficiency in [the plaintiff's] argument is that he
has not adduced any admissible evidence that in fact a fear
of retribution deterred him from filing a grievance, regardless
of whether such a fear could be considered objectively
reasonable.”) (citations omitted); Cf. Hunter v. Rouse, No.
9:20-CV-65 (LEK/DJS), 2020 WL 8474744, at *4 (N.D.N.Y.
Sept. 17, 2020), report and recommendation adopted, 2021
WL 101083 (N.D.N.Y. Jan. 12, 2021) (holding that the
plaintiff's allegation that a defendant “told him that if he
told ‘anyone what happened, the next time [the plaintiff]
won't walk away[,]’ ” was “more than a generalized fear
of retaliation[,]” and, therefore, “sufficiently reasonable to
render administrative remedies unavailable.”); Galberth v.
Durkin, No. 9:14-CV-115 (BKS/ATB), 2014 WL 7409915,
at *8 (N.D.N.Y. Dec. 31, 2014) (holding that the defendants’
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threats that the plaintiff “would be beaten within an inch
of his life” if he told anyone about the alleged assault was
more than a generalized fear of retaliation and excused
the plaintiff's failure to exhaust). Accordingly, as plaintiff
has failed to demonstrate that defendants’ purported threats
prevented him from “taking advantage of a grievance process
through machination, misrepresentation, or intimidation,”
the undersigned concludes that he has failed to show
unavailability on this ground. Ross, 578 U.S. at 644.
Conversely, assuming arguendo and affording plaintiff due
solicitude, that plaintiff's claims could be interpreted has
demonstrating that Hamilton or other corrections staff
threatened plaintiff with violence, retaliation, or retribution
and prevented him from filing a grievance immediately after
the September 29, 2023, incident, plaintiff filed a grievance
for an unrelated issue on December 14, 2023, and attempted
to file a grievance in this matter on February 5, 2024. See
Dkt. Nos. 26-5 at 4, 26-6 at 2, 26-7 at 2-8; Dkt. No. 30 at
4. “[T]he Second Circuit has concluded that when an inmate
files a grievance, notwithstanding the threats of retaliation
and intimidation of which that inmate complains, the failure
to fully exhaust under the PLRA will not be excused on
this ground.” Grant v. Kopp, No. 9:17-CV-1224 (GLS/DEP),
2019 WL 368378, at *6 (N.D.N.Y. Jan. 3, 2019), report and
recommendation adopted, No. 9:17-CV-1224 (GLS/CFH),
2019 WL 367302 (N.D.N.Y. Jan. 30, 2019) (citing McNab
v. Doe, 686 F. App'x. 49, 51 (2d Cir. 2017), affirming 2016
WL 324994 (N.D.N.Y. Jan. 27, 2016) (Suddaby, C.J.)). In
reaching this conclusion, the Second Circuit noted that:
*12 [Plaintiff] asserted that
defendants tried to intimidate him, and
intimidation can excuse the failure to
exhaust. However, none of the actions
allegedly taken by the defendants
actually prevented [plaintiff] from
submitting his complaint letter.
[Plaintiff] was able to take the first
step in the grievance process, and
nothing in the record suggests he was
intimidated from taking the next step
(appealing the rejection of his informal
grievance).
McNab, 686 F. App'x at 51 (internal citations omitted).
The undersigned concludes that because plaintiff continued
to avail himself of the grievance procedure immediately
following these alleged threats, plaintiff was not prevented
from “taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Ross, 578
U.S. at 644. Thus, he has failed to show unavailability on this
ground. See id.
d. First and Second Ross Exceptions
In the interest of thoroughness, the undersigned will also
address the first and second Ross exceptions. As stated above,
the first Ross exception applies when the grievance procedure
“operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates[,]” while the second Ross exception applies when the
“administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use.” Ross, 578 U.S. at
643. Plaintiff has not alleged that the grievance procedures
at either Mid-State CF, Gouverneur CF, or Marcy CF were
“dead end[s]” or “so opaque” as to be rendered “incapable
of use.” Ross, 578 U.S. at 643. Plaintiff stated that he
is “fully aware of the whole grievance process, as well
as having participated in an unrelated evidentiary hearing
concerning the exhaustion of administrative remedies” and
“took every step to exhaust his administrative remedies before
bring[ing] this action before this Court.” Dkt. No. 30 at
1-2. Plaintiff also stated that “at all times [he] was fully
aware that before he could bring a claim before this Court,
he would have to exhaust all his administrative remedies.”
Dkt. No. 30-1 at 6. After the September 29, 2023, incident,
plaintiff filed a grievance related to a medical issue on
December 14, 2023, and attempted to file a grievance relating
to the September 29, 2023, incident, on February 5, 2024.
See Dkt. Nos. 26-5 at 4, 26-6 at 2, 26-7 at 2-8, 30 at
4. “This shows that Plaintiff did not view the filing of
grievances as a dead end. It also demonstrates that he clearly
understood DOCCS’ inmate grievance policy and could
navigate it when he wished to pursue a grievance.” Walker
v. Ball, No. 9:16-CV-437 (DNH/DJS), 2018 WL 1415212,
at *5 (N.D.N.Y. Feb. 16, 2018), report and recommendation
adopted, No. 9:16-CV-437 (DNH/DJS), 2018 WL 1406632
(N.D.N.Y. Mar. 20, 2018) (citing Gonzalez v. Coburn, No.
6:16-CV-06174 (MAT), 2017 WL 6512859, at *6 (W.D.N.Y.
Dec. 20, 2017) (additional citation omitted)) (“Plaintiff's
decision to affirmatively participate at all three levels in the
inmate grievance program demonstrates that the program was
neither a dead-end nor so opaque that Plaintiff could not avail
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himself of it.”). “As such, the first two exceptions identified
under Ross are not applicable here.” Id.
4. Time to File a Grievance has Expired
Here, the alleged incident took place on September 29, 2023.
See Dkt. No. 9 at 8-10; No. 30 at 4-16. Plaintiff had until
October 20, 2023, to file a grievance with IGRC. See 7
N.Y.C.R.R. § 701.5(a) (“An inmate must submit a complaint
to the clerk within 21 calendar days of an alleged occurrence
on an inmate grievance complaint form.”). Plaintiff also had
until November 13, 2023, to request an extension of time
to file a grievance. See 7 N.Y.C.R.R. § 701.6(g)(1) (An
inmate may file a request for an extension of time to file
a grievance within forty-five days of the alleged incident.).
The record does not indicate, and plaintiff has not asserted,
that he attempted to file a grievance by October 20, 2023, or
that he requested an extension of time to file his grievance
at any time. Although plaintiff attempted to file a grievance
on dated February 5, 2024, as discussed above, this grievance
was untimely. See Dkt. No. 30 at 4.
*13 “Ordinarily, the proper remedy where a prisoner has
failed to satisfy the exhaustion requirement is to dismiss the
complaint without prejudice, to give the inmate a chance
to exhaust his administrative remedies and then refile his
complaint.” Robinson v. Harder, No. 9:21-CV-1322 (DNH/
CFH), 2024 WL 1469076, at *9 (N.D.N.Y. Feb. 20, 2024)
(first quoting Brown v. Napoli, No. 08-CV-6477L (DGL), 687
F. Supp. 2d 295, 298 (W.D.N.Y. 2009), then citing Chisholm
v. N.Y.C. Dep't of Corr., No. 08-CV-8795, 2009 WL 2033085,
at *3 (S.D.N.Y. July 13, 2009)). “This is so even when the
issue is decided on a motion for summary judgment.” Mateo
v. Corebine, No. 9-CV-4811 (RJH/DCF), 2010 WL 3629515,
at *7 (S.D.N.Y. Sept. 17, 2010) (collecting cases). However,
if an inmate has failed to exhaust available administrative
remedies and the time in which to exhaust has expired,
it is proper for the court to dismiss the complaint with
prejudice because any attempt to exhaust would be futile.
See Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004); see
also Richard v. LeClaire, 9:15-CV-0006 (BKS/TWD), 2019
WL 5197041, at *9 (N.D.N.Y. May 6, 2019), report and
recommendation adopted, 2019 WL 4233184 (N.D.N.Y.
Sept. 6, 2019) (“Because [the p]laintiff's failure to exhaust is
at this point incurable, the Court recommends that summary
judgment for failure to exhaust administrative remedies be
with prejudice.”).
Plaintiff's failure to exhaust his available administrative
remedies relating to the alleged incident on September 29,
2023, is no longer curable. The time for plaintiff to exhaust his
administrative remedies has expired. Also, plaintiff has not
demonstrated that the grievance procedure was unavailable
to him. Accordingly, it is recommended that defendants’
motion for summary judgment be granted as to plaintiff's First
Amendment retaliation claim and this claim be dismissed
with prejudice. See Berry, 366 F.3d at 88. Subsequently, as
there is “no genuine dispute as to any material fact” as to
whether the grievance procedure was available to plaintiff
and to whether plaintiff failed to exhaust, the undersigned
recommends denying plaintiff's motion for an evidentiary
hearing as a matter of law. FED. R. CIV. P. 56(a).
IV. Motion to Dismiss
A. Legal Standard
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.” 8 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, 678 (2009)) (internal quotation marks and alterations
omitted).
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, 570 (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
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draw on its judicial experience and common sense.” Iqbal,
556 U.S. at 679.
B. Arguments
*14 Defendants argue that plaintiff's claims should be
dismissed because they are barred by Section 24 of the
New York State Correction Law. Dkt. No. 26-11 at 10-12.
Defendants assert that Section 24 affords immunity to all
DOCCS employees from liability and damages “arising out
of any act done or the failure to perform any act within the
scope of the employment and in the discharge of the duties by
such officer or employee.” Id. at 11 (citing N.Y. Correct. Law
§ 24(1)); see id. at 12. Defendants state that Hamilton and
Barbosa were acting within the scope of their employment as
a corrections officer and a hearing officer, and therefore, any
claims against them in their personal capacities are statutorily
barred. See id. at 11-12.
Plaintiff does not respond to defendants’ arguments. See
generally Dkt. Nos. 30, 32. The undersigned notes that
plaintiff alleges that he was defamed and slandered by false
“statements made by defendant Hamilton in a misbehavior
report, and during plaintiff's disciplinary hearing, and by
defendant Barbosa in a disciplinary decision.” Dkt. No. 10 at
16; See Dkt. No. 1 at 4.
C. Analysis
Section 24 of the New York State Correction Law provides
that
No civil action shall be brought in
any court of the state, except by
the attorney general on behalf of the
state, against any officer or employee
of the department ... in his or her
personal capacity, for damages arising
out of any act done or the failure to
perform any act within the scope of the
employment and in the discharge of the
duties by such officer or employee.
N.Y. Correct. Law § 24(1). “An employee's actions are
deemed to be within the scope of their employment when
‘the act was done while the servant was doing his master's
work, no matter how irregularly, or with what disregard
of instructions.’ ” Henderson v. Popp, No. 9:22-CV-242
(AMN/MJK), 2025 WL 1033853, at *25 (N.D.N.Y. Mar.
4, 2025), report and recommendation adopted, No. 9:22-
CV-242 (AMN/MJK), 2025 WL 942801 (N.D.N.Y. Mar. 28,
2025), aff'd as modified, No. 9:22-CV-242 (AMN/MJK),
2025 WL 1427876 (N.D.N.Y. May 19, 2025) (quoting Ierardi
v. Sisco, 119 F.3d 183, 187 (2d Cir. 1997)).
For purposes of New York Correction Law [Section]
24, the courts have looked to the following factors to
determine whether actions fall within the actor's scope of
employment:
the connection between the time, place and occasion for
the act; the history of the relationship between employer
and employee as spelled out in actual practice; whether the
act is one commonly done by any employee; the extent
of departure from normal methods of performance; and
whether the specific act was one that the employer could
reasonably have anticipated.
Balentine v. Shurgot, No. 9:22-CV-285 (MAD/ML), 2023
WL 6622034, at *7–8 (N.D.N.Y. Oct. 11, 2023) (quoting
Francis v. Fiacco, No. 9:15-CV-901, 2016 WL 3448617, *4
(N.D.N.Y. June 20, 2016) (quoting Ierardi, 119 F.3d at 187)).
“Employees are considered to be acting within the scope
of their employment so long as they are carrying out their
assigned duties, ‘no matter how irregularly, or with what
disregard of instructions.’ ” Balentine v. Anzalone, No. 9:21-
CV-1383 (LEK/CFH), 2023 WL 4905093, at *3 (N.D.N.Y.
July 12, 2023), report and recommendation adopted, No.
9:21-CV-1383 (LEK/CFH), 2023 WL 4887454 (N.D.N.Y.
Aug. 1, 2023) (quoting Bernardi v. New York State Dep't
of Corr., No. 19-CV-11867 (KMK), 2021 WL 1999159, at
*5 (S.D.N.Y. May 19, 2021)) (additional citation omitted).
“Employees ... are not found to be acting within their
employment scope when their conduct, while in the course
of employment, is for purely personal reasons unrelated to
the employer's interests and a substantial departure from
the normal methods of performing [their] duties.” Balentine,
2023 WL 6622034, at *8 (quoting Balentine, 2023 WL
4905093, at *3) (additional citations and quotation marks
omitted); Cf. Livingston v. Griffin, No. 9:04-CV-607 (JKS),
2007 WL 2437433, at *2 (N.D.N.Y. Aug. 22, 2007) (“New
York courts have held that § 24(1) is inapplicable where the
act is committed solely for personal reasons unrelated to the
employer's interests.”).
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*15 Here, all of plaintiff's allegations arise from Hamilton's
investigation into a threat against a corrections officer at Mid-
State CF, and the statements made by Hamilton and Barbosa
in the misbehavior report, during the disciplinary hearing, and
in the disciplinary decision. See Dkt. Nos. 1 at 4; 10 at 16.
Defendants argue that all of their actions relating to this matter
were within the scope of their employment as a corrections
officer and hearing officer, and therefore, they are immune to
suit. See Dkt. No. 26-11 at 10-12. The undersigned agrees.
Even viewing the evidence in the light most favorable to
plaintiff as the non-moving party, plaintiff fails to allege that
any of the actions taken, or statements made, by Hamilton
or Barbosa fell outside the scope of their employment.
It is reasonable to conclude that each action taken by
Hamilton and Barbosa giving rise to plaintiff's claims, i.e. (1)
investigating an inmate's threat against corrections officers;
(2) drafting and filing a misbehavior report; (3) testifying
at and conducting a disciplinary hearing; and (4) drafting
and issuing a disciplinary decision, are common tasks that
fall within the scope of Hamilton and Barbosa's duties a
corrections officer and hearing officer. See Balentine, 2023
WL 6622034, at *7–8; Balentine, 2023 WL 4905093, at
*3. More specifically, these actions satisfy the criteria set
forth in Ierardi. See Ierardi, 119 F.3d at 187. All acts giving
rise to plaintiff's state law claims occurred at Mid-State
CF. See generally Dkt. No. 1. The misbehavior report was
filed the same day the investigation was completed. See
Dkt. No. 1-1 at 1. The disciplinary hearing was held five
days after the misbehavior report was filed. See id. at 2.
The disciplinary hearing decision was issued the same day
the disciplinary hearing was completed. See id. at 2-7. To
the extent that either Hamilton or Barbosa “depart[ed] from
normal methods of performance,” plaintiff challenged the
disciplinary hearing decision and the decision was reversed.
See id. at 9. Additionally, it is reasonable for DOCCS
to anticipate Hamilton and Barbosa would perform these
functions in the course of their employment duties. See
Ierardi, 119 F.3d at 187.
Therefore, the undersigned concludes that all actions taken
Hamilton and Barbosa were in the scope of employment as
a corrections officer and a hearing officer. Thus, plaintiff's
state law defamation and slander claims are barred by Section
24 of the New York State Correction Law. See N.Y. Correct.
Law § 24(1); Balentine, 2023 WL 6622034, at *8 (quoting
Balentine, 2023 WL 4905093, at *3); Foskey v. Northrup,
No. 9:20-CV-504 (LEK/TWD), 2025 WL 1920379, at *4
(N.D.N.Y. May 6, 2025) (quoting Davis v. McCready, 283 F.
Supp. 3d 108, 123 (S.D.N.Y. 2017)) (“Courts in the Second
Circuit have long held that Section 24 precludes a plaintiff
from raising state law claims in federal court against state
employees in their personal capacities for actions arising
within the scope of their employment.”); Henderson, 2025
WL 1033853, at *26 (“Plaintiff does not respond to this
argument. As there are no allegations that Defendants were
acting outside of the scope of their employment and in
the discharge of their duties, the statutory bar imposed by
Corrections Law § 24 is applicable.”); Arriaga v. Annucci,
No. 23-CV-1941 (VB), 2024 WL 1743300, at *6–7 (S.D.N.Y.
Apr. 23, 2024) (“Here, plaintiff does not allege any defendant
acted outside the scope of their DOCCS employment ...
Accordingly, plaintiff's state law claim[ ] for ... slander per se,
and fraud must be dismissed.”). Accordingly, the undersigned
recommends that defendants’ motion to dismiss be granted
in its entirety and plaintiff's state law defamation and slander
claims be dismissed with prejudice.
V. Conclusion
*16 WHEREFORE, for the reasons set forth herein, it is
hereby:
RECOMMENDED, that defendants’ motion for summary
judgment (Dkt. No. 26) be GRANTED, and plaintiff's
amended complaint (Dkt. No. 9) as alleging a First
Amendment retaliation claim against defendant J. Hamilton
be DISMISSED in its entirety with prejudice; it is further
RECOMMENDED, that defendants’ motion to dismiss
(Dkt. No. 26) be GRANTED, and plaintiff's amended
complaint (Dkt. No. 9) as alleging New York State law
defamation and slander claims against defendants J. Hamilton
and Barbosa be DISMISSED in its entirety with prejudice;
it is further
RECOMMENDED, that plaintiff's cross-motion (Dkt. No.
30) requesting an evidentiary hearing be DENIED; it is
ORDERED, that the Clerk serve a copy of this Report-
Recommendation and Order on all parties in accordance with
Local Rules.
IT IS SO ORDERED.
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Pursuant to U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.
Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV P. 6(a), 6(e), 72. 9
All Citations
Slip Copy, 2025 WL 2933461
Footnotes
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 initially brought claims against “Superintendent Doe” and alleging that his Eighth Amendment and
Fourteenth Amendment equal protection rights were violation. See Dkt. No. 9 at 1-2. On initial review, the
Court sua sponte dismissed the Eighth Amendment and Fourteenth Amendment equal protection claims and
terminated “Superintendent Doe” from the action pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. §
1915A(b). See Dkt. No. 10.
3 The undersigned notes that plaintiff's Fourteenth Amendment due process claims survived initial review but
are not the subject of defendants’ motion.
4 The undersigned's citations to filings connected with this motion refer to the pagination located at the header
of each page, which the Court's electronic filing and case management program generated, rather than the
individual pagination of each document.
5 The Court has provided plaintiff with copies of all unpublished cases cited within this Report-Recommendation
and Order.
6 Plaintiff also argues that he objected to the misbehavior report and the disciplinary hearing process overall
during the October 4, 2023, disciplinary hearing before Barbosa. See Dkt. No. 9 at 11. Plaintiff states that he
was not afforded an opportunity to (1) submit questions to the hearing officer to be asked to the confidential
informant or (2) refute any evidence proffered by the confidential informant or Hamilton. See id. at 11. The
undersigned notes plaintiff's arguments but will not address them further in the context of defendants’ motions
because these arguments are the subject of plaintiff's Fourteenth Amendment due process claim(s).
7 As will be discussed below, although plaintiff raises the issue of unavailability, he does not raise the issue
of unavailability in the context of mailing his grievance to Mid-State CF. See Dkt. No. 30. However, to the
extent plaintiff's argument could be interpreted as asserting that the grievance procedure was unavailable
to him because it was too opaque, “the Supreme Court [has] found that an inmate's mistaken belief that
he has exhausted his administrative remedies, even where that belief seems reasonable, does not make
the administrative remedies unavailable.” Livingston v. Hoffnagle, No. 9:17-CV-1158 (MAD/DEP), 2019 WL
409366, at *4 (N.D.N.Y. Feb. 1, 2019) (citing Ross v. Blake, 578 U.S. 632, 641)
8 Although defendants move to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction, Judge
Nardacci permitted plaintiff's state law defamation and slander claims to proceed after initial review. See
Dkt. No. 10 at 15-16. Thus, the Court already determined that it has subject matter and pendent jurisdiction
over these claims. See id. However, in reaching this determination, Judge Nardacci stated that “the Court
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expresses no opinion as to whether these claims can withstand a properly filed dispositive motion.” Id. at 16.
Accordingly, the undersigned will analyze the merits of plaintiff's claim under Rule 12(b)(6) and determine
whether there is a viable cause of action.
9 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 & Order was mailed to you to serve and file objections. See FED. R. CIV.
P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. See id. § 6(a)(1)(C).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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2025 WL 2731047
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Towaun COLEMAN, Plaintiff,
v.
J. HAMILTON et al., Defendants.
9:24-cv-00455 (AMN/PJE)
|
Signed September 25, 2025
Attorneys and Law Firms
TOWAUN COLEMAN, Edgecombe Residential Treatment
Facility, 611 Edgecombe Avenue, New York, New York
10032, Plaintiff, pro se.
CHI-HSIN E. ENGELHART, ESQ., Assistant Attorney
General, HON. LETITIA A. JAMES, New York State
Attorney General, The Capitol, Albany, New York 12224,
Attorneys for Defendants.
MEMORANDUM-DECISION AND ORDER
Anne M. Nardacci, United States District Judge:
I. INTRODUCTION
*1 On April 1, 2024, plaintiff pro se Towaun Coleman
(“Plaintiff”) commenced this action pursuant to 42 U.S.C.
§ 1983 against J. Hamilton (“Defendant Hamilton”),
Barbosa (“Defendant Barbosa,” and, together with Defendant
Hamilton, “Defendants”), and others, in connection with
a misbehavior report that Plaintiff received during his
incarceration by the New York State Department of
Corrections and Community Supervision (“DOCCS”). Dkt.
No. 1 (“Complaint”). The Court conducted an initial
review pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b) and, on May 28, 2024, dismissed the
Complaint with leave to amend. Dkt. No. 7. Plaintiff filed
an amended complaint on June 25, 2024. Dkt. No. 9
(“Amended Complaint”). The Court subsequently assessed
the sufficiency of the Amended Complaint and determined
that the following claims remained and required a response:
(i) Plaintiff's First Amendment retaliation claim against
Defendant Hamilton; (ii) Plaintiff's Fourteenth Amendment
Due Process claims against Defendants; and (iii) Plaintiff's
state law defamation and slander claims against Defendants.
Dkt. No. 10 at 17. 1
On January 27, 2025, Defendants moved for summary
judgment on Plaintiff's First Amendment claim and to
dismiss Plaintiff's state law claims. Dkt. No. 26 (“Motion”).
Plaintiff opposed the Motion and filed a cross-motion for
an evidentiary hearing. Dkt. No. 30 (“Cross-Motion”). This
matter was referred to United States Magistrate Judge
Paul J. Evangelista, who, on August 29, 2025, issued a
report-recommendation and order recommending that the
Motion be granted and that the Cross-Motion be denied.
Dkt. No. 34 (“Report-Recommendation”). Magistrate Judge
Evangelista advised that under 28 U.S.C. § 636(b)(1) and
Local Rule 72.1(c), the parties had fourteen days within
which to file written objections and that failure to object
to the Report-Recommendation within fourteen days would
preclude appellate review. Id. at 35-36. Neither party filed
objections, and the time to do so has expired.
For the reasons set forth below, the Court adopts the Report-
Recommendation in its entirety.
II. LEGAL STANDARD
This Court reviews de novo those portions of a magistrate
judge's report-recommendation that have been properly
preserved with a specific objection. Petersen v. Astrue, 2
F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. §
636(b)(1)(C). If no specific objections have been filed, this
Court reviews a magistrate judge's report-recommendation
for clear error. See Petersen, 2 F. Supp. 3d at 229
(citing Fed. R. Civ. P. 72(b), Advisory Committee Notes:
1983 Addition). Similarly, if an objection simply rehashes
arguments originally presented to the magistrate judge,
this Court reviews the relevant portions of the report-
recommendation for clear error. See Petersen, 2 F. Supp. 3d
at 228-29 & n.6 (collecting cases). “When performing such
a ‘clear error’ review, ‘the court need only satisfy itself that
there is no clear error on the face of the record in order to
accept the recommendation.’ ” Dezarea W. v. Comm'r of Soc.
Sec., No. 21-cv-01138, 2023 WL 2552452, at *1 (N.D.N.Y.
Mar. 17, 2023) (quoting Canady v. Comm'r of Soc. Sec., No.
17-cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14,
2017)).
*2 “[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
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F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines
v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). The Second Circuit has held that courts are
obligated to “make reasonable allowances to protect pro se
litigants” from inadvertently forfeiting legal rights merely
because they lack a legal education. Id. (quoting Traguth v.
Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a
pro se party's objections to a Report and Recommendation
must be specific and clearly aimed at particular findings in
the magistrate's proposal ....” Machicote v. Ercole, No. 06-
cv-13320, 2011 WL 3809920, at *2, (S.D.N.Y. Aug. 25, 2011)
(citation omitted); accord Caldwell v. Petros, No. 22-cv-567,
2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After
appropriate review, “the 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).
III. DISCUSSION
As no party has filed objections to the Report-
Recommendation, this Court reviews the Report-
Recommendation for clear error. Familiarity with the
background and the legal framework set forth in the Report-
Recommendation, both of which the Court adopts as they
contain no clear error, is presumed.
As to Plaintiff's First Amendment claim, he alleges that
Defendant Hamilton retaliated against him in connection
with the filing of an allegedly false misbehavior report
on September 29, 2023. Dkt. No. 34 at 4-7. Magistrate
Judge Evangelista concluded that Plaintiff had failed to
administratively exhaust this claim. Id. at 15-20. Magistrate
Judge Evangelista determined that, under the applicable
DOCCS regulations, Plaintiff had until October 20, 2023
to file a grievance, or until November 12, 2023 to request
an extension of time to file a grievance. Id. at 15. Neither
the record nor Plaintiff's allegations establish that he did
either. Id. at 15, 28. Instead, the parties agree that Plaintiff
attempted to file a grievance on February 5, 2024. Id.
at 15. Magistrate Judge Evangelista also determined that
administrative remedies were available to Plaintiff at all
relevant times. Id. at 20-28. Because Plaintiff's failure to
exhaust his administratively remedies was no longer curable,
Magistrate Judge Evangelista recommended granting the
Motion and dismissing Plaintiff's First Amendment claim
against Defendant Hamilton with prejudice. Id. at 29.
The Court discerns no clear error in this analysis, to which it
adds the following. First, the issue of exhaustion here is not
“intertwined with the merits” of Plaintiff's retaliation claim,
which relates to an earlier and independent misbehavior
report. Perttu v. Richards, 605 U.S. 460, 468 (2025). Second,
Plaintiff himself confirms that he failed to administratively
exhaust this claim. The general DOCCS grievance process
consists of three steps:
First, the inmate must generally file a grievance with the
Inmate Grievance Resolution Committee (“IGRC”) within
21 days of the incident. N.Y. Comp. Codes R. & Regs.
(“NYCRR”) tit. 7 § 701.5(a)(1), (b). The IGRC must render
a decision within 18 days of receipt. Id. § 701.5(b)(2)
(ii), (b)(3)(i). If the IGRC renders an adverse decision,
the inmate has seven days from receipt to appeal to the
superintendent of the facility, who then has 20 days to
respond. Id. § 701.5(c). If the superintendent renders an
adverse decision, the inmate has seven days to appeal to
the [Central Office Review Committee (“CORC”)]. Id.
§ 701.5(d)(1)(i). The CORC, in turn, “shall review each
appeal [and] render a decision on the grievance ... within
30 calendar days from the time the appeal was received.”
Id. § 701.5(d)(3)(ii).... “Absent [ ] extension, matters not
decided within the time limits may be appealed to the next
step.” Id. [§ 701.6(g)(2)].
*3 Hayes v. Dahlke, 976 F.3d 259, 264 (2d Cir. 2020)
(second and third alterations in original) (footnote omitted);
see also Dkt. No. 34 at 13-15.
As detailed in the Report-Recommendation, Plaintiff
contends that he is “fully aware of the whole grievance
process[.]” Dkt. No. 34 at 11 (citation omitted). Plaintiff
further contends that he navigated the entire process,
unilaterally and without receiving any response, by writing
a series of letters between February 5, 2024 and March
22, 2024. Id. at 6-7; see Dkt. No. 30-1 at 7-9. Even if the
grievance process could be exhausted at that time and in such
a fashion, and all Plaintiff's letters were submitted properly
and received immediately, Plaintiff only wrote to the CORC
on March 22, 2024. Dkt. No. 30-1 at 9. Plaintiff then filed
this lawsuit on April 1, 2024. Dkt. No. 1. At that time, the
CORC still had weeks, at least, to render a decision and thus
Plaintiff had not exhausted his administrative remedies at the
time he filed suit. Dahlke, 976 F.3d at 270 (“We therefore
hold that, because the DOCCS Inmate Grievance Procedure
imposes a mandatory deadline for the CORC to respond, an
inmate exhausts administrative remedies when he follows the
procedure in its entirety but the CORC fails to respond within
the 30 days it is allocated under the regulations.”).
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In sum, the Court agrees with Magistrate Judge Evangelista
that there is no genuine dispute of material fact regarding
Plaintiff's failure to exhaust his First Amendment claim, and
that an evidentiary hearing on the issue is unnecessary. Dkt.
No. 34 at 15, 35.
Plaintiff's state law defamation and slander claims relate to
actions taken by Defendants in connection with the allegedly
false misbehavior report and a subsequent hearing. Id. at
31-35. Plaintiff did not respond to Defendants’ arguments
for dismissing these claims. Id. at 31. After examining
Plaintiff's allegations and the applicable law, Magistrate
Judge Evangelista concluded that Defendants’ alleged actions
were within the scope of their employment with DOCCS and
were thus barred by New York State Corrections Law § 24.
Id. at 34-35. The Court discerns no clear error in this analysis
and agrees with Magistrate Judge Evangelista that this claim
should be dismissed with prejudice as well.
As a result, the Report-Recommendation is adopted in its
entirety.
III. CONCLUSION
Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 34, is
ADOPTED in its entirety; and the Court further
ORDERS that Defendants’ Motion, Dkt. No. 26, is
GRANTED; and the Court further
ORDERS that Plaintiff's First Amendment retaliation claim
against Defendant Hamilton and defamation and slander
claims against Defendant Hamilton and Defendant Barbosa,
are DISMISSED with prejudice; and the Court further
ORDERS that Plaintiff's Cross-Motion, Dkt. No. 30, is
DENIED; and the Court further
ORDERS that the Clerk serve a copy of this Order on the
parties in accordance with the Local Rules. 2
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2731047
Footnotes
1 Citations to docket entries utilize the pagination generated by CM/ECF, the Court's electronic filing system,
and not the document's internal pagination.
2 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein.
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2015 WL 1413362
United States District Court,
N.D. New York.
K. Felicia DAVIS, Plaintiff,
v.
CITY OF SYRACUSE; and
Stephanie A. Miner, Defendants.
No. 5:12–CV–0276 (GTS/DEP).
|
Signed March 27, 2015.
Attorneys and Law Firms
K. Felicia Davis, Syracuse, NY, pro se.
Bond, Schoeneck & King, Plcc, Laura H. Harshbarger,
Esq., Kristen E. Smith, Esq., of Counsel, Syracuse, NY, for
Defendants.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in his employment
discrimination action filed by K. Felecia Davis (“Plaintiff”)
against the City of Syracuse and Stephanie A. Miner
(“Defendants”), is Defendants' motion for summary
judgment. (Dkt. No. 63.) For the reasons set forth below,
Defendants' motion is granted.
I. RELEVANT BACKGROUND
A. Summary of Plaintiff's Claims and Defendants'
Counterclaims
Generally, in her Amended Complaint, Plaintiff asserts the
following ten claims arising from her alleged wrongful
termination from the position of Board Administrator of the
City of Syracuse's Citizen Review Board on February 4, 2011,
after she took maternity leave in late October of 2010:(1) a
claim against Defendant City for sex discrimination under
Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e et seq. (“Title VII”); (2) a claim against
Defendant City for retaliation under Title VII; (3) a claim
against Defendant City for sex discrimination under the New
York State Human Rights Law, New York Executive Law
§ 296 et seq. (“the Executive Law”); (4) a claim against
Defendant City for retaliation under the Executive Law; (5)
a claim against Defendant Miner for aiding and abetting sex
discrimination under the Executive Law; (6) a claim against
Defendant Miner for aiding and abetting retaliation under
the Executive Law; (7) a claim against both Defendants for
violation of the right to due process under the Fourteenth
Amendment and 42 U.S.C. § 1983; (8) a claim against
Defendant Miner for violation of the right to equal protection
under 42 U.S.C. § 1983 and the Fourteenth Amendment; (9)
a claim against Defendant City for violation of the Family
and Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”);
and (10) a claim against Defendant Miner for retaliation
under 42 U.S.C. § 1983 and the First Amendment. (Dkt.
No. 6.) Familiarity with the factual allegations supporting
these claims is assumed in this Decision and Order, which is
intended primarily for the review of the parties.
Generally, in their Answer, Defendants assert the following
four counterclaims arising from Plaintiff's alleged practice of
law using a City-paid secretary and City computer during
the hours that she claimed to have worked for the City:
(1) a counterclaim of fraud under New York State common
law; (2) a counterclaim of negligent misrepresentation under
New York State common law; (3) a counterclaim of unjust
enrichment under New York State common law; and (4)
a counterclaim of faithless servant under New York State
common law. (Dkt. No. 8.)
B. Undisputed Material Facts
The following facts were asserted and properly supported by
Defendants in their Statement of Material Facts and were
either admitted or denied without proper support by Plaintiff
in her Response thereto. (Compare Dkt. No. 63, Attach. 1
[Defs.' Rule 7.1 Statement] with Dkt. No. 67, Attach. 10 [Plf.'s
Rule 7.1 Response].)
*2 Before reciting these facts, the Court pauses to explain
the reason for certain deficiencies in Plaintiff's response to
Defendants' Statement of Facts. On a motion for summary
judgment, denials of fact that are based on a lack of
personal knowledge, mere information or belief, and/or
inadmissible evidence are insufficient to create a genuine
dispute. Fed.R.Civ.P. 56(c)(4) (“An affidavit or declaration
used to ... oppose a motion [for summary judgment] must
be made on personal knowledge, set out facts that would be
admissible in evidence and show that the affiant or declarant is
competent to testify on matters stated.”); Rodriguez v. Bubnis,
11–CV–1436, 2014 WL 6078529, at *10, n. 25 (N.D.N.Y.
Nov. 13, 2014) (Suddaby, J.) (collecting cases). Moreover,
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the assertion of additional material facts by a non-movant is
permitted only if the additional material facts are both (1) in
dispute and (2) contained in separately numbered paragraphs.
N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant's response may
also set forth any additional material facts that the non-
movant contends are in dispute in separately numbered
paragraphs.”) (emphasis added) . 1
Plaintiff's Employment by the City
1. Plaintiff was a full-time employee of the City of Syracuse,
and served as the Administrator of the City's Citizen Review
Board (“CRB”). 2
2. Plaintiff was not employed to act as a lawyer for the City
or the CRB. 3
3. Plaintiff's employment was not covered by an individual
employment contract or by any of the City's collective
bargaining agreements; rather, she served at the discretion of
the CRB and was able to be removed by the CRB for good
cause. 4
4. The CRB is comprised of Board members who are
volunteer citizens appointed by the Syracuse Common
Council and the Mayor. 5
Mayor's Early Decisions Regarding the CRB
5. Even before becoming Mayor, as a Common Councilor,
Mayor Stephanie Miner heard comments about the CRB that
were overwhelmingly negative, and heard story after story
about citizens who went to the CRB office and found it closed
or who made complaints to the CRB but did not hear back
from it. 6
6. When Mayor Miner took office, the CRB was one of the
issues she wanted to address. 7
7. In her first month in office (January of 2010), Mayor Miner
denied the CRB's request for authorization to hire a new
employee (to fill a vacant investigator position), because she
was unwilling to devote taxpayer money to a CRB that was
not producing value to the taxpayers, deciding instead that the
City's money would be better spent on commissioning a study
of CRBs in other cities that were more effective. 8
8. As a result, Mayor Miner appointed Christine Fix to
conduct the study. 9
9. After Ms. Fix completed her report of CRB models in
June 2010, Mayor Miner distributed the report within her
administration, with the directive that she wanted to explore
a new model for the CRB that would be more effective and
impactful. 10
Plaintiff's Non–Appearance at the Paulk Trial
*3 10. The Paulk case was a federal lawsuit brought by
a citizen, Martin Paulk, against two SPD officers (Paulk v.
Lester, 06–CV–1343 [N.D.N.Y.] ). 11
11. On October 21, 2010, a process server attempted to
personally serve a subpoena on Plaintiff at her home. 12
12. The subpoena called for CRB documents and for Plaintiff
to testify at the Paulk trial on Monday, November 1, 2010. 13
13. Plaintiff was not home, but her husband reached her by
telephone. 14
14. Plaintiff spoke by telephone to the gentleman attempting
to deliver the papers, and instructed him to deliver the papers
to the City Corporation Counsel's office. 15
15. The process server delivered the papers to the City's
Corporation Counsel office on Friday, October 22, 2010. 16
16. The Paulk trial was scheduled to begin on November 1,
2010. 17
17. Before serving the subpoena, Richard Brickwedde
(Paulk's attorney), had not indicated a desire to call Plaintiff
as a witness . 18
18. On October 22, 2010, Joseph Doyle, a City attorney on
the Paulk case, submitted a letter to the presiding judge,
United States District Judge Charles Kornmann, requesting a
conference to address the subpoena. 19
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19. Doyle's co-counsel, James McGinty, anticipated that
Judge Kornmann would agree with the City's position that
Brickwedde should not be allowed to call Plaintiff as a witness
in the Paulk trial . 20
20. Judge Kornmann did not address the issue of the subpoena
until a pre-trial conference on October 28, 2010, during
which he decided that Brickwedde would be allowed to call
Plaintiff. 21
21. At the time of the pre-trial conference on October
28, 2010, McGinty and Doyle assumed, from the fact that
Plaintiff had told the process server to bring the package to
their office, that Plaintiff knew that the package contained a
subpoena in the Paulk case. 22
22. At the time of the pre-trial conference on October 28,
2010, McGinty and Doyle were not aware that Plaintiff was
pregnant or that she would be going on maternity leave. 23
23. On Friday, October 29, 2010, McGinty called the CRB
office and asked to speak with Plaintiff. 24
24. The CRB secretary told McGinty that Plaintiff was on
maternity leave. 25
25. Plaintiff's maternity leave began on October 29, 2010. 26
26. McGinty explained to Plaintiff's secretary that a subpoena
had been issued to Plaintiff for her to testify in the Paulk trial
on Monday at 9:00 a.m., and that whether she was on leave
from work was immaterial. 27
27. McGinty told Plaintiff's secretary that she needed to
get in touch with and tell her that she needed to appear as
subpoenaed or, if she could not, she needed to call the attorney
who issued the subpoena, Mr. Brickwedde, to make other
arrangements for her testimony. 28
28. Plaintiff's secretary called her that day and informed her
that a man from the Corporation Counsel's office had called
and indicated that she should call an attorney by the name of
Brickwedde . 29
*4 29. Plaintiff called Brickwedde and left a voicemail
informing him that something had been received by the City
for her and that she was going on maternity leave. 30
30. Brickwedde returned Plaintiff's call but missed her and
also left a voicemail. 31
31. Brickwedde advised Plaintiff that he could not speak
to her for ethical reasons and instructed her to speak to
McGinty. 32
32. Plaintiff did not call McGinty or Doyle. 33
33. On the first day of the trial (November 1, 2010),
Brickwedde called Plaintiff as a witness; however, she was
not there. 34
34. When Plaintiff did not appear, McGinty called the CRB
office. 35
35. The CRB secretary answered and told McGinty that
Plaintiff had called her earlier that day to say that she was in
labor and going to the hospital, which information McGinty
relayed to Judge Kornmann. 36
36. Plaintiff was not in the hospital giving birth on November
1, 2010, but was at her doctor's office; she gave birth on
November 9, 2010.
37. Meanwhile, at trial, another issue was occurring: McGinty
and Doyle were informed that Brickwedde had independently
obtained a CRB report stating that the CRB had found his
client's complaint of police misconduct “substantiated.”
38. When questioned by Judge Kornmann as to why McGinty
and Doyle had not produced the document during discovery,
McGinty explained that the CRB had not provided it to them
(after they had requested documents from the CRB during the
course of the Paulk discovery process). 37
39. As a result of Plaintiff's failure to appear, Judge Kornmann
imposed a sanction on the police officers in the form of
allowing the CRB's “substantiated” finding to come into the
record without allowing any testimony to explain or minimize
the impact of the detrimental document on the police officers'
case. 38
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40. After a three-day trial, the jury returned a verdict in favor
of the City's police officers. 39
New Information Emerges
Concerning Plaintiff's Whereabouts
41. On November 8, 2010, Brickwedde filed a motion for a
new trial and for additional sanctions in the Paulk case.
42. The motion was based, in large part, on Plaintiff's non-
appearance at trial and the City's failure to produce all relevant
CRB documents during discovery. 40
43. On November 16, 2010, Brickwedde supplemented his
motion papers on the ground that he had found out that
Plaintiff had voted in an election on November 2, 2010, while
the three-day Paulk trial was still ongoing. 41
44. From the perspective of McGinty and City Corporation
Counsel Juanita Perez–Williams, this fact called into question
the information that Plaintiff's secretary had provided to
McGinty on November 1, 2010, and that McGinty had, in
turn, had provided to Judge Kornmann (i.e., that Plaintiff was
in labor and going to the hospital on November 1, 2010). 42
45. On November 24, 2010, Judge Kornmann issued
a memorandum ordering the production of extensive
documents and information about Plaintiff's whereabouts at
the time of trial, as well as “all records of the office [Plaintiff]
heads which deal in any way with [the Paulk ] case.”
*5 46. To explore these issues, Judge Kornmann scheduled
a hearing for January 24, 2011. 43
47. In a letter to Perez–Williams dated December 3, 2010,
Plaintiff stated, “I made a call to Mr. Brickwedde and left a
voicemail informing him of my late stage of pregnancy and
start of labor (I had begun to dilate), and informed [him] that
I had not seen any subpoena.” 44
48. In response to Judge Kornmann's memorandum of
November 24, 2010, Plaintiff provided Corporation Counsel's
office with a number of CRB documents related to Paulk that
had not been provided in response to earlier requests to her
office for CRD documents related to Paulk. 45
The City's Investigation into Plaintiff
and the Operation of the CRB
49. When Perez–Williams learned in late-November of the
motion for a new trial and for sanctions, she informed Mayor
Miner as to what was occurring; Miner first learned about the
subpoena and Plaintiff's non-appearance only after Plaintiff
had not appeared. 46
50. The Paulk situation was deeply concerning to Mayor
Miner. 47 At the time Miner took office, she believed that
something had to be done about the CRB. 48 The Paulk matter
brought the perceived problem of the CRB into a state of
immediacy for her. 49 As she saw the situation, instead of
merely being a waste of resources, the CRB now was creating
potential liability for the City. 50
51. Upon hearing about the Paulk subpoena incident, Mayor
Miner asked Perez–Williams to “drill down” into what was
going on with Plaintiff and the CRB and to report back to
her. 51
52. The City's investigation indicated the following:
a. As of the end of November 2010, the CRB's
two employees (Plaintiff and her secretary, Carolyn
Williams) had not entered time sheets into the City's
timekeeping/payroll system since June; this meant that,
even though Plaintiff was currently claiming to be on
maternity leave, and had been (according to her) on such
leave since late October, she was allowing the City to
pay her as an active employee, without having to use any
of accrued time-off benefits. 52
b. On December 2, 2010, Plaintiff signed and submitted six
months' worth of time sheets on a single day. 53
c. On December 8, 2010, Plaintiff filled out an FMLA
request form, which “requested” permission to take an
FMLA leave that had begun six weeks earlier. 54
d. Several CRB Board positions were vacant, other Board
members had been appointed but never properly sworn
in, and still other Board members' terms had expired,
such that they were serving terms to which they had
not been appointed; this information led Perez–Williams
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to conclude that the CRB could not legally take action,
because it did not have a quorum of individuals properly
appointed and installed in accordance with the City
charter. 55
e. The CRB had not been forwarding citizen complaints
to the Syracuse Police Department Internal Affairs
Division (“IAD”) on a timely basis so that the complaints
could be properly investigated. 56
*6 f. For example, on December 16, 2010, the CRB sent
12 citizen complaints to IAD. 57
g. The 12 citizen complaints Plaintiff's office forwarded on
December 16, 2010, had been marked as received by the
CRB as much as nine months earlier; before the mass
mailing to IAD on December 16, 2010, the CRB office
had sent only two citizen complaints to IAD for all of
2010. 58
h. The local law requires the CRB to forward citizen
complaints to IAD upon receiving them because IAD has
the first 45 days to conduct its investigation. 59
i. While the CRB may have kept statistical reports at its
office, and given those reports to the Syracuse Common
Council during each budget year, the CRB had not
published monthly and quarterly statistical reports, as
required by the CRB ordinance. 60
j. The last available meeting minutes were from June
2010. 61
k. In early October of 2010, Plaintiff refused to reveal,
to a Common Councilor, the current CRB Board
members' names (which were considered by the
Common Councilor and Perez–Williams to be public
information). 62
l. Several times Plaintiff was late in submitting her budget
requests to the City's Finance Department. 63
53. Perez–Williams shared these and the remainder of her
findings with Mayor Miner. 64
54. Based on these overall findings, including the negligent
handling of the Paulk subpoena and the “numerous
deficiencies in the operation of the CRB, caused in large part
by [her] failure to exercise [her] statutory responsibilities,”
Mayor Miner decided to terminate Plaintiff's employment. 65
The City Discovers Plaintiff's Private
Practice Work in Her City Office on City Time
55. Mayor Miner reached out to the New York State
Comptroller and requested an audit of the CRB office
concerning the issues uncovered in the City's investigation. 66
56. Mayor Miner made this request for an audit within days
of Plaintiff's termination. 67
57. The State Comptroller performed its audit largely in late
2011 and early 2012. 68
58. In connection with the audit process, the City was asked to
provide the State Comptroller with access to the CRB office
and its paper files and electronic records, including the City
computer that had been issued to Plaintiff. 69
59. As a result of the City's review of the data and information
requested in connection with the audit, it was brought to
Mayor Miner's attention that Plaintiff had used the City's
resources (i.e., the City's office space, the City-paid secretary,
the City's fax machine, the City's computer, etc.) to engage in
her private law practice, and that Plaintiff had submitted time
sheets claiming to have worked for the City when she had
been engaged in her private law practice, not City business. 70
60. By the late spring of 2012, Mayor Miner believed
that the City was due potentially significant recompense;
this determination grew out of the documentation the City
reviewed in connection with and in response to the ongoing
audit, which was occurring at the time the City answered the
Complaint. 71
*7 61. The Comptroller's report was published in June 2012
and stated, among other things, that “[t]he analysis found that
the Administrator spent a significant amount of time during
normal business hours engaging in private legal work using a
City-owned computer.” 72
The City Remakes the CRB
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62. Immediately after Plaintiff's termination, the City changed
the locks on the doors of the CRB office, and the CRB ceased
to function (for the time being). 73
63. The City formed an ad hoc committee to propose reforms
to the CRB and, as a result of this committee's work, the
Common Council passed, and Mayor Miner signed into law,
new legislation designed to ensure that the CRB would be
accountable and effective going forward . 74
64. The City started fresh with new citizens Board members
(five new appointments); and the new CRB Board selected a
new Administrator. 75
C. Summary of Parties' Arguments on Defendants'
Motion
1. Defendants' Memorandum of Law
Generally, in their memorandum of law, Defendants assert
seven arguments. (Dkt. No. 63, Attach. 13 [Defs.' Memo. of
Law].)
First, Defendants argue, Plaintiff's pregnancy-discrimination
claims under Title VII and the Executive Law should be
dismissed for two reasons: (a) even assuming Plaintiff can
meet her modest prima facie burden on such a claim, the City
need only articulate a legitimate, non-discriminatory reason
for its action (which it has done, given Plaintiff's negligence
with respect to the Paulk matter as well as her numerous
deficiencies in the operation of the CRB); and (b) the burden
then shifts to Plaintiff to prove by a preponderance of the
evidence that the legitimate reasons offered by the City were
not its true reasons but were a pretext for discrimination,
and that intentional discrimination was the real reason for
the adverse action (which she has not done, and cannot
do, given that her disagreement with the City's assessment
of her performance does establish pretext, her conspiracy
theory is sheer speculation, McGinty is not a “similarly
situated” comparator, her claim of being “scapegoated” for
the Paulk debacle undercuts her pregnancy-discrimination
theory, and no reasonable factfinder could conclude that the
City completely overhauled the CRB merely because Plaintiff
had a baby). (Id.)
Second, Defendants argue, in any event, Plaintiff's retaliation
claims under Title VII and the Executive Law should be
dismissed for three reasons: (a) after a plaintiff has established
a prima facie case of retaliation (showing protected activity,
an adverse employment action, and a causal relationship),
the employer can then meet its burden of articulating a
legitimate, non-retaliatory reason for filing counterclaims by
establishing a reasonable good-faith belief that the claims
were valid, after which any presumption of retaliation drops
out and the plaintiff bears a “substantial burden,” pursuant to
which she must show that, but-for the protected activity, the
employer would not have taken the adverse action; (b) here,
Plaintiff cannot even establish a prima facie case because
a non-frivolous compulsory counterclaim is generally not,
as a matter of law, an adverse employment action, and the
counterclaims asserted by the City in this action are amply
supported by the record; and (c) in any event, Plaintiff cannot
establish pretext because the fact that the City's counterclaims
were filed shortly after Plaintiff's Complaint was filed does
not save Plaintiff's retaliation claims (in that such a proximity
of time is necessary with counterclaims), and the City was
investigating any actionable malfeasance long before Plaintiff
filed her Complaint. (Id.)
*8 Third, Defendants argue, Plaintiff's aider-and-abettor
claims under the Executive Law should be dismissed because
there is no primary violation of the Executive Law to aid or
abet. (Id.)
Fourth, Defendants argue, Plaintiff's “stigma plus” procedural
due process claim under the Fourteenth Amendment should
be dismissed for three reasons: (a) even if she could show
a damage to her reputation (thus satisfying the “stigma”
element), she was, as an at-will government employee,
afforded all the process she was due, given the availability of
an Article 78 proceeding to clear her name (which suffices to
provide the requisite post-deprivation process to a terminated
employee, even if that employee fails to avail herself of
that process); (b) she cannot dispute that she was an at-will
employee, because she was not subjected to any employment
or collective bargaining agreement (and, indeed, her argument
that she served at the pleasure of the CRB supports the
conclusion that she was an at-will employee); and (c) to the
extent Plaintiff argues that Mayor Miner lacked the authority
to terminate her, that argument relates to a due process claim
and thus Plaintiff was able to assert it in an Article 78
proceeding. (Id.)
Fifth, Defendants argue, Plaintiff's equal protection claim
under the Fourteenth Amendment should be dismissed for
the same reasons that her Title VII pregnancy-discrimination
claim should be dismissed. (Id.)
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Sixth, Defendants argue, Plaintiff's FMLA claim should be
dismissed for the same reasons that her Title VII pregnancy-
discrimination claim should be dismissed. (Id.)
Seventh, Defendants argue, Plaintiff's retaliation claim under
the First Amendment should be dismissed for three reasons:
(a) her testimony before Judge Kornmann during the
sanctions hearing of January 24, 2011, was not “protected” (in
that she was not speaking as a citizen but as an employee);
(b) in any event, her termination on February 4, 2011, was
not caused by that testimony but by her conduct in connection
with the Paulk subpoena in November of 2010; and (c) at the
very least, Defendant Miner is protected from liability as a
matter of law by the doctrine of qualified immunity (given
that the issue of whether Plaintiff was speaking as a citizen
rather than as an employee was not “clearly established”
during the time in question). (Id.)
2. Plaintiff's Opposition Memorandum of Law
Generally, in her opposition memorandum of law, Plaintiff
asserts seven arguments. (Dkt. No. 67, Attach. 9 [Plf.'s Opp'n
Memo. of Law].)
First, Plaintiff argues, she has established a sex-
discrimination claim under Title VII (and presumably under
the Executive Law) for two reasons: (a) Defendants do not
dispute that she has established a prima facie case that she
was discriminated against by the City due to her pregnancy;
and (b) as a result, to avoid summary judgment, she need
not show that the City's proffered reasons were false or not a
factor but only that the prohibited factor (i.e., her pregnancy)
was among the motivating factors (which she has done, due
to Defendants' admission that her non-appearance at trial,
which occurred while she was out on maternity leave, was a
motivating reason for her termination). (Id.)
*9 Second, Plaintiff argues, she has established a retaliation
claim under Title VII (and presumably under the Executive
Law) because the City's counterclaims are baseless in that (a)
she was permitted by the CRB to engage in a private legal
practice and (b) Defendant Miner knew, before the events
in question, that Plaintiff was engaging in that private legal
practice. (Id.)
Third, Plaintiff argues, she has established an aiding-and-
abetting claim against Defendant Miner under the Executive
Law because Miner worked to develop what she knew were
baseless reasons for Plaintiff's termination, which reasons
were relied on by the City of Syracuse to engage in sex
discrimination and retaliation under the Executive Law. (Id.)
Fourth, Plaintiff argues, she has established a “stigma
plus” procedural due process claim under the Fourteenth
Amendment for four reasons: (a) she suffered injury
to her reputation in that she was denied a job with
Cornell Cooperative Extension (thus satisfying the “stigma”
element); (b) she experienced defamation plus the loss of
government employment (thus satisfying the “plus” element);
(c) she was not afforded a pre-deprivation hearing although
she had an implied employment contract with the CRB (due to
the fact that CRB Board members had to determine whether to
continue her employment each year) and her termination was
not random and unauthorized (due to the fact that Defendant
Miner was a high-ranking official with final authority over
significant matters); and (d) indeed, even if she was an at-
will employee, she was not afforded even a post-deprivation
hearing (although she requested one). (Id.)
Fifth, Plaintiff argues, she has established an equal protection
claim under the Fourteenth Amendment for four reasons:
(a) she is a member of a protected class (in that she is
female); (b) she was qualified for her position (in that she
served in her capacity as CRB Administrator for 17 years,
held more educational credentials than required, and had
never been disciplined or reprimanded); (c) she suffered an
adverse employment action (in that she was terminated from
her employment); and (d) the circumstances surrounding the
employment action give rise to an inference of discrimination
(in that a similarly-situated male was not disciplined for
conduct that Plaintiff was accused of committing but did not
actually commit). (Id.)
Sixth, Plaintiff argues, she has established an FMLA claim
for five reasons: (a) she was an eligible employee under the
FMLA (in that she had worked the previous 12 months); (b)
the City was a covered employer under the FMLA (in that it
had the requisite number of employees); (c) she was entitled
to the leave of absence (in that her maternity leave had been
approved by the CRB prior to October of 2010); (d) she gave
notice to the City of her intention to take leave (in that the City
had such notice on or before October 6, 2010, and later when
she emailed the City requesting an FMLA form); and (e) she
was denied benefits to which she was otherwise entitled (in
that the termination interrupted her light duty leave, and the
reason for the termination was a pretext for discrimination).
(Id .)
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*10 Seventh, Plaintiff argues, she has established a
retaliation claim under the First Amendment for four reasons:
(a) her testimony at the hearing of January 24, 2011, was
protected speech; (b) the subject about which she was called
to testify was of public concern in that police misconduct
has been recognized as being of public interest; (c) the
proximity of her termination to her testimony (i.e ., 10
days) demonstrates discriminatory animus; and (d) Defendant
Miner is not protected by qualified immunity (in that
Plaintiff's First Amendment rights were clearly established
at the time of her termination due to the fact that Jackler v.
Bryne, 658 F.3d 225 [2d Cir.2011] was decided in February
of 2011). (Id.)
3. Defendants' Reply Memorandum of Law
Generally, in their reply memorandum of law, Defendants
assert seven arguments. (Dkt. No. 72 [Defs.' Reply Memo. of
Law].)
First, Defendants argue, Plaintiff has taken liberties with the
record in two ways: (a) she cites to the record nowhere in her
opposition memorandum of law; and (b) for the most part,
her primary evidence (her own affidavit) is not based on her
personal knowledge, contains inadmissible material such as
hearsay, and/or sets forth legal conclusions. (Id.)
Second, Defendants argue, Plaintiff's denials of Defendants'
statements of material fact are ineffective for four reasons:
(a) she denies many facts about which she could not
possibly have any firsthand knowledge or evidence (e.g.,
conversations or telephone calls to which she was not a
party, decisions made and impressions held by Mayor Miner,
pre-trial events in the Paulk matter), as often is evident by
her reliance on her “information and belief”; (b) she denies
several facts about matters that are independently verifiable
based on court records or documentary evidence, and about
which she has no admissible evidence to dispute (e.g., the
existence and contents of the Paulk subpoena, the date of the
Paulk trial, the Paulk jury verdict, and the date and contents of
the State Comptroller's report); (c) she denies material facts
that she plainly admitted in her own prior sworn testimony
(e.g., the fact that a process server attempted to serve her at
her home, the fact that she did not call McGinty or Doyle after
receiving a voice mail from Brickwedde, and the fact that she
was aware of the Paulk case prior to the trial); and (d) in many
instances, she muddles Defendants' fact statements by going
off in another direction she likes better, which is insufficient
to call Defendants' facts into dispute). (Id.)
Third, Defendants argue, Plaintiff fails to save her pregnancy-
discrimination claim for three reasons: (a) in her attempt to
establish pretext, she relies on the incorrect legal standard
(i.e., one applicable in a mixed-motive case, which this
is not); (b) in any event, her conspiracy theory (i.e., that
the subpoena incident was a strategic effort to adversely
impact and compromise Plaintiff due to her pregnancy) is
supported only by speculation and hearsay, and contradicts
the testimony of McGinty, Perez–Williams and Mayor Miner;
and (c) her excuses for her own ineffectiveness and the
CRB's ineffectiveness do not establish pretext (and fail to
show that the City's belief that she did, in fact, know that a
subpoena existed, was not honestly held at the time it decided
to terminate her employment). (Id.)
*11 Fourth, Defendants argue, Plaintiff fails to save her
retaliation claim under Title VII and the Executive Law
for two reasons: (a) to avoid dismissal of this claim, she
must provide sufficient, competent evidence that Defendants'
counterclaims are the product of retaliatory animus; and
(b) instead, Plaintiff offers only speculation (e.g., regarding
Common Councilors' knowledge of her private legal practice)
and misstatements of record evidence (e.g., regarding
the scope and source of Mayor Miner's knowledge of
Plaintiff's private legal practice, and the nature of the City's
authorization of a CLE course that Plaintiff attended). (Id.)
Fifth, Defendants argue, Plaintiff fails to save her due process
claim under the Fourteenth Amendment for two reasons: (a)
the single case that Plaintiff cites in support of her argument
that she had an implied employment contract (Potts v. City
of Utica, 86 F.2d 616 [2d Cir.1936] ) is, in addition to being
old, factually distinguishable from the current case; and (b)
the sole record evidence that Plaintiff adduces in support of
her argument that she had an implied employment contract
(i.e., the affidavit of former-CRB Board member Homer
Davis) is speculative (in that the Davis ceased serving as
a CRB Board member in 2008) and immaterial (in that it
addresses a purported agreement to allow Plaintiff to practice
law privately on City time), and in any event actually supports
the fact that Plaintiff served at-will (albeit at the will of the
CRB). (Id.)
Sixth, Defendants argue, Plaintiff fails to save her FMLA
claim for two reasons: (a) her argument that Defendants
interfered with her leave by terminating her while on “light
duty leave” implies that any termination while on FMLA
leave is a violation of the FMLA, which is not the law; (b)
as established by Defendants earlier, Plaintiff was terminated
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for legitimate, non-discriminatory reasons, and she has not
presented sufficient evidence to rebut these reasons. (Id.)
Seventh, Defendants argue, Plaintiff fails to save her
retaliation claim under the First Amendment for two reasons:
(a) by focusing on whether her testimony at the Paulk
hearing was protected speech, Plaintiff ignores Mayor Miner's
position that there is no causal connection between that
testimony and Plaintiff's termination; and (b) in any event,
she has not overcome Mayor Miner's entitlement to qualified
immunity because, although the case of Jackler v. Bryne,
658 F.3d 225 (2d Cir.2011), was decided in July of 2011,
the contrary case of Bearss v. Hilton, 445 F. App'x 400 (2d
Cir.2011), was decided in November of 2011, rendering the
state of the law not “clearly established” when Mayor Miner
acted. (Id.)
II. GOVERNING LEGAL STANDARD
Under Fed.R.Civ.P. 56, summary judgment is warranted if
“the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment as
a matter of law.” Fed.R.Civ.P. 56(a). In determining whether
a genuine issue of material fact exists, the Court must resolve
all ambiguities and draw all reasonable inferences against the
moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986). In addition, “[the moving party] bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of the ... [record] which
it believes demonstrate[s] the absence of any genuine issue
of material fact.” Celotex v. Catrett, 477 U.S. 317, 323–24
(1986). However, when the moving party has met this initial
responsibility, the nonmoving party must come forward with
specific facts showing a genuine issue of material fact for trial.
Fed.R.Civ.P. 56(a),(c),(e).
*12 A dispute of fact is “genuine” if “the [record] evidence
is such that a reasonable jury could return a verdict for the
novmoving party.” Anderson, 477 U.S. at 248. As a result,
“[c]onclusory allegations, conjecture and speculation ... are
insufficient to create a genuine issue of fact.” Kerzer v.
Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998) [citation
omitted]. As the Supreme Court has famously explained,
“[The nonmoving party] must do more than simply show
that there is some metaphysical doubt as to the material
facts” [citations omitted]. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 585–86 (1986).
As for the materiality requirement, a dispute of fact is
“material” if it “might affect the outcome of the suit under the
governing law.” Anderson, 477 U.S. at 248. “Factual disputes
that are irrelevant or unnecessary will not be counted.” Id.
[citation omitted].
Implied in the above-stated burden-shifting standard is
the fact that, where a nonmoving party willfully fails to
adequately respond to a motion for summary judgment, a
district court has no duty to perform an independent review
of the record to find proof of a factual dispute—even if that
nonmoving party is proceeding pro se . 76 (This is because
the Court extends special solicitude to the pro se litigant
largely by ensuring that he or she has received notice of the
consequences of failing to properly respond to the motion
for summary judgment.) 77 As has often been recognized by
both the Supreme Court and Second Circuit, even pro se
litigants must obey a district court's procedural rules. 78 For
this reason, this Court has often enforced Local Rule 7.1(a)
(3) by deeming facts set forth in a moving party's statement to
have been admitted where the nonmoving party has willfully
failed to properly respond to that statement 79 —even where
the nonmoving party was proceeding pro se in a civil rights
case. 80
Finally, generally, special solicitude is not extended to pro
se litigants who are attorneys. See e.g., Harbulak v. Suffolk,
654 F.2d 194, 198 (2d Cir.1981) (“[Plaintiff] is a lawyer and,
therefore, cannot claim the special consideration which the
courts customarily grant to pro se parties.”); Davey v. Dolan,
453 F.Supp.2d 749, 754 (S.D.N.Y.2006) (“[P]laintiff here is
also a member of the New York bar and his papers will be
viewed accordingly .”) 81
III. ANALYSIS
A. Plaintiff's Sex–Discrimination Claims Against the
City Under Title VII and the Executive Law
After carefully considering the matter, the Court dismisses
these claims for the reasons stated in Defendants' memoranda
of law. See, supra, Part I.C. of this Decision and Order.
B. Plaintiff's Retaliation Claims Against the City
Under Title VII and the Executive Law
After carefully considering the matter, the Court dismisses
these claims for the reasons stated in Defendants' memoranda
of law. See, supra, Part I.C. of this Decision and Order.
To those reasons, the Court would only add one point.
Plaintiff's reliance on the motivating-factor standard (in her
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opposition memorandum of law of October 21, 2014) ignores
the Supreme Court's decision (of June 24, 2013) in Univ. of
Tex. SW Med. Ctr. v. Nassar, 133 S.Ct. 2517 (2013), in which
the Court held that the level of causation that must be proved
in a Title VII retaliation claim is one of but-for causation.
C. Plaintiff's Aiding–and–Abetting Claims Against
Mayor Miner Under the Executive Law
*13 After carefully considering the matter, the Court
dismisses these claims for the reasons stated in Defendants'
memoranda of law. See, supra, Part I.C. of this Decision and
Order. To those reasons, the Court would only add one point.
In the alternative, the Court would dismiss this claim without
prejudice to refiling in state court pursuant to 28 U.S.C. §
1367 due to the fact that no federal claims survive Defendants'
motion.
D. Plaintiff's Due Process Claim Against Defendants
Under the Fourteenth Amendment
After carefully considering the matter, the Court dismisses
this claim for the reasons stated in Defendants' memoranda of
law. See, supra, Part I.C. of this Decision and Order. To those
reasons, the Court would only add two points.
First, the Second Circuit's decision in Potts v. City of Utica,
86 F.2d 616 (2d Cir.1936), is distinguishable from the current
case in that, in addition to not addressing a due process claim,
it did not address the issue of whether an implied employment
contract had been created by the fact that each year a different
configuration of board members of a city agency exercised its
discretion not to remove a city employee for good cause.
Second, in any event, there is a lack of admissible record
evidence from which a rational fact-finder could conclude that
the CRB Board members in fact exercised their discretion
not to remove Plaintiff for good cause each year (especially
during the years 2009 and 2010). As an initial matter, it
can hardly be said that there was a different configuration
of the Board each year. See, supra, Paragraphs 52(d) and
52(k) of Part I.B.of this Decision and Order. Moreover,
even if there had been a different configuration each year,
Plaintiff points to no record evidence establishing that the
issue of her continued employment was raised annually at
CRB meetings. (See generally Dkt. No. 67, Attach. 9 [Plf.'s
Opp'n Memo. of Law].) Finally, even if the issue had been so
raised, Plaintiff has adduced evidence admitting that the CRB
experienced problems gathering a quorum to take official
action in resolving that issue. (Dkt. No. 67, Attach. 1, at Par.
16 [Homer Davis Affid.].) See also Paragraph 52(d) of Part
I.B.of this Decision and Order.
E. Plaintiff's Equal Protection Claim Against Mayor
Miner Under the Fourteenth Amendment
After carefully considering the matter, the Court dismisses
this claim for the reasons stated in Defendants' memoranda of
law. See, supra, Part I.C. of this Decision and Order.
F. Plaintiff's FMLA Claim Against the City
After carefully considering the matter, the Court dismisses
this claim for the reasons stated in Defendants' memoranda of
law. See, supra, Part I.C. of this Decision and Order.
G. Plaintiff's Retaliation Claim Against Mayor Miner
Under the First Amendment
After carefully considering the matter, the Court dismisses
this claim for the reasons stated in Defendants' memoranda of
law. See, supra, Part I.C. of this Decision and Order. To those
reasons, the Court would only add two points.
*14 First, the fact that Mayor Miner was previously aware
of Plaintiff's representation of her husband in a lawsuit while
she was employed as the Administrator of the CRB does not
mean that Miner knew that Plaintiff was regularly engaged
in a private law practice in City office space, using a City-
paid secretary and City computer during the hours that she
claimed to have worked for the City. The sole admissible
record evidence on this subject is that Miner did not have
such knowledge. (Compare Dkt. No. 63, Attach. 8, at ¶¶
33–34 [Miner Decl., admitting awareness that Plaintiff had
represented husband in case in which he was the plaintiff, but
denying knowledge of scope of Plaintiff's legal practice] and
Dkt. No. 67, Attach. 5, at 3–5, 6–7 [attaching pages “11,”
“12,” “13,” “47,” and “48” of Miner's Dep. Tr., stating that she
worked on case in which Plf.'s husband was a plaintiff, and
had occasion to believe Plaintiff represented him in that case]
with Dkt. No. 67, Attach. 1, at ¶¶ 24–25 [Homer Davis Affid.,
asserting “[u]pon information and belief” that Miner knew
Plaintiff “was a practicing attorney”] and Dkt. No. 67, at ¶¶
40–41 [Plf.'s Decl., asserting Miner's notice of case in which
Plaintiff was the lead attorney “sometime in 2001–2002,” and
fact that “[m]any councilor's [sic] knew I was practicing”].)
Second, in any event, Plaintiff is incorrect when she argues
that her First Amendment rights were clearly established at
the time of her termination because Jackler v. Bryne, 658
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F.3d 225 (2d Cir.2011), was decided in February of 2011.
In fact, Jackle r was not decided until July 22, 2011. It was
merely argued in February of 2011. Moreover, that argument
did not occur until February 24, 2011–20 days after Plaintiff's
termination on February 4, 2011. Simply stated, the state of
the law was not clearly established on February 4, 2011.
ACCORDINGLY, it is
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 63) is GRANTED; and it is further
ORDERED that Plaintiff's Amended Complaint (Dkt. No. 6)
is DISMISSED.
The parties are advised that remaining in this action are
Defendants' four counterclaims against Plaintiff.
All Citations
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& Hour Cas.2d (BNA) 179,902
Footnotes
1 The Court notes that, under Fed.R.Civ.P. 56 and N.D.N.Y. Local Rule 7.1, there is no procedure by which
a non-movant may assert a “counter statement of [undisputed] material facts” in response to a motion for
summary judgment: the vehicle for such undisputed material facts would be a cross-motion for summary
judgment (i.e., one seeking a judgment due to a lack of a genuine dispute of material fact). See Fed.R.Civ.P.
56(a); N .D.N.Y. L.R. 7.1(a)(3).
2 (Compare Dkt. No. 63, Attach. 1, at ¶ 1 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 1 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
3 (Compare Dkt. No. 63, Attach. 1, at ¶ 2 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 2 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
4 (Dkt. No. 63, Attach. 8, at ¶ 7 [Miner Decl.].) See also City of Syracuse Local Law 11 of 1993 § 6(3)(a),(b).
5 (Dkt. No. 63, Attach. 3, at 7 [attaching page “38” of Davis Dep. Tr.].) See also City of Syracuse Local Law
11 of 1993 §§ 1, 4(2), 5(1).
6 (Compare Dkt. No. 63, Attach. 1, at ¶ 5 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 5 [Plf.'s Rule 7.1 Response, citing record evidence that fails to
controvert fact asserted, and in any event that fails show personal knowledge sufficient to controvert fact
asserted].)
7 (Compare Dkt. No. 63, Attach. 1, at ¶ 6 [Defs.' Rule 7.1 Statement, citing Paragraph 9 of Miner Declaration,
which supports fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 6 [Plf.'s Rule 7.1 Response, citing record
evidence that fails to controvert fact asserted, and in any event that fails show personal knowledge sufficient
to controvert fact asserted].)
8 (Dkt. No. 63, Attach. 8, at ¶¶ 10–11 [Miner Decl.].)
9 (Dkt. No. 63, Attach. 8, at ¶ 10 [Miner Decl.].)
10 (Compare Dkt. No. 63, Attach. 1, at ¶ 9 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 9 [Plf.'s Rule 7.1 Response, failing to cite record evidence that
controverts fact asserted].)
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11 (Compare Dkt. No. 63, Attach. 1, at ¶ 10 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 10 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
12 (Compare Dkt. No. 63, Attach. 1, at ¶ 11 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 11 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].) See also Paulk v. Lester, 06–CV–1343, Tr. of Hrg. of Jan. 24, 2011 at 16–
17, 70 (N.D.N.Y. filed Feb. 9, 2011).
13 (Compare Dkt. No. 63, Attach. 1, at ¶ 12 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 12 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
14 (Compare Dkt. No. 63, Attach. 1, at ¶ 13 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 13 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
15 (Compare Dkt. No. 63, Attach. 1, at ¶ 14 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 14 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].) See also Paulk v. Lester, 06–CV–1343, Tr. of Hrg. of Jan. 24, 2011 at 16–
17, 70 (N.D.N.Y. filed Feb. 9, 2011).
16 (Compare Dkt. No. 63, Attach. 1, at ¶ 15 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 15 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
17 (Compare Dkt. No. 63, Attach. 1, at ¶ 16 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 16 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
18 (Compare Dkt. No. 63, Attach. 1, at ¶ 17 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 17 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
19 (Compare Dkt. No. 63, Attach. 1, at ¶ 18 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 18 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
20 (Compare Dkt. No. 63, Attach. 1, at ¶ 19 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 19 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
21 (Compare Dkt. No. 63, Attach. 1, at ¶ 20 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 20 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
22 (Compare Dkt. No. 63, Attach. 1, at ¶ 21 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 21 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].) See also Paulk v. Lester, 06–CV–1343, Tr. of Hrg. of Jan. 24, 2011 at 31–
37 (N.D.N.Y. filed Feb. 9, 2011).
23 (Compare Dkt. No. 63, Attach. 1, at ¶ 22 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 22 [Plf.'s Rule 7.1 Response, citing record evidence that does not
regard the awareness of McGinty and Doyle on October 28 but their awareness of October 29 when McGinty
called Plaintiff's office and was told by her secretary that she was out on maternity leave].)
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24 (Compare Dkt. No. 63, Attach. 1, at ¶ 23 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 23 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
25 (Compare Dkt. No. 63, Attach. 1, at ¶ 24 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 24 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
26 (Compare Dkt. No. 63, Attach. 1, at ¶ 25 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 25 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
27 (Compare Dkt. No. 63, Attach. 1, at ¶ 26 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 26 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
28 (Compare Dkt. No. 63, Attach. 1, at ¶ 27 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 27 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
29 (Compare Dkt. No. 63, Attach. 1, at ¶ 28 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 28 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
30 (Dkt. No. 67, at ¶ 15 [Plf.'s Decl.]; Dkt. No. 67, Attach. 4, at 5 [attaching page “33” of transcript of January
2010 hearing in Paulk ]; cf. Dkt. No. 63, Attach. 11, at 9 [Ex. B to Perez–Williams Decl., attaching letter from
Plaintiff to Perez–Williams dated Dec. 3, 2010 stating that Plaintiff had informed Brickwedde that she “had
not seen any subpoena”].)
31 (Compare Dkt. No. 63, Attach. 1, at ¶ 30 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 30 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
32 (Compare Dkt. No. 63, Attach. 1, at ¶ 31 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 26 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
33 (Compare Dkt. No. 63, Attach. 1, at ¶ 32 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 32 [Plf.'s Rule 7.1 Response, citing to record evidence that
fails to controvert fact asserted].)
34 (Compare Dkt. No. 63, Attach. 1, at ¶ 33 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 33 [Plf.'s Rule 7.1 Response, citing to record evidence that
fails to controvert fact asserted].)
35 (Compare Dkt. No. 63, Attach. 1, at ¶ 34 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 34 [Plf.'s Rule 7.1 Response, merely denying knowledge of fact
asserted, and/or impugning judgment of McGinty, neither of which suffices to controvert fact asserted].)
36 (Compare Dkt. No. 63, Attach. 1, at ¶ 35 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 35 [Plf.'s Rule 7.1 Response, merely denying knowledge offact
asserted, which fails to controvert that fact].)
37 (Dkt. No. 63, Attach. 7, at ¶¶ 14, 21 [McGinty Decl.]; cf. Dkt. No. 67 [Plf.'s Decl., merely denying personal
knowledge of the CRB's receipt of such a request in 2008].)
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38 (Compare Dkt. No. 63, Attach. 1, at ¶ 39 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 39 [Plf.'s Rule 7.1 Response, merely denying knowledge of fact
asserted, which fails to controvert that fact].)
39 (Compare Dkt. No. 63, Attach. 1, at ¶ 40 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 40 [Plf.'s Rule 7.1 Response, merely denying knowledge of fact
asserted, which fails to controvert that fact].)
40 (Compare Dkt. No. 63, Attach. 1, at ¶ 42 [Defs.' Rule 7.1 Statement, citing to record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 42 [Plf.'s Rule 7 .1 Response, merely denying knowledge
of fact asserted, which fails to controvert that fact].) See also Paulk v. Lester, 06–CV–1343, Plf.'s Memo. of
Law (N.D.N.Y. filed Nov. 8, 2010).
41 (Compare Dkt. No. 63, Attach. 1, at ¶ 43 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 43 [Plf.'s Rule 7.1 Response, citing to record evidence that fails
to controvert fact asserted].) See also Paulk v. Lester, 06–CV–1343, Plf.'s Supplemental Affirm. (N.D.N.Y.
filed Nov. 16, 2010).
42 (Dkt. No. 63, Attach. 7, at ¶ 18 [McGinty Decl.]; Dkt. No. 63, Attach. 10, at ¶ 8 [Perez–Williams Decl.]; cf. Dkt.
No. 67, Attach. 10 [Plf.'s Rule 7.1 Response, citing record evidence that does not controvert fact asserted].)
43 (Compare Dkt. No. 63, Attach. 1, at ¶ 46 [Defs.' Rule 7.1 Statement, citing to record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 46 [Plf.'s Rule 7 .1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
44 (Compare Dkt. No. 63, Attach. 1, at ¶ 47 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 47 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
45 (Compare Dkt. No. 63, Attach. 1, at ¶ 48 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 48 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
46 (Compare Dkt. No. 63, Attach. 1, at ¶ 49 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 49 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
47 (Compare Dkt. No. 63, Attach. 1, at ¶ 50 [Defs.' Rule 7.1 Statement, citing to record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 50 [Plf.'s Rule 7 .1 Response, citing record evidence that
fails to controvert facts asserted].)
48 (Id.)
49 (Id.)
50 (Id.)
51 (Compare Dkt. No. 63, Attach. 1, at ¶ 51 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
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52 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(a) [Defs.' Rule 7.1 Statement, citing record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(a) [Plf.'s Rule 7.1 Response, citing record evidence that
fails to controvert facts asserted].)
53 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(b) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(b) [Plf.'s Rule 7.1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
54 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(c) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(c) [Plf.'s Rule 7.1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
55 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(d) [Defs.' Rule 7.1 Statement, citing record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(d) [Plf.'s Rule 7.1 Response, failing to either deny facts
asserted or cite record evidence that controverts facts asserted].)
56 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(e) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(e) [Plf.'s Rule 7.1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
57 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(f) [Defs.' Rule 7.1 Statement, citing record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(f) [Plf.'s Rule 7.1 Response, failing to either deny facts
asserted or cite record evidence that controverts facts asserted].)
58 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(g) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(g) [Plf.'s Rule 7.1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
59 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(h) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(h) [Plf.'s Rule 7.1 Response, failing to either deny fact
asserted or cite record evidence that controverts fact asserted].)
60 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(i) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(i) [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
61 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(j) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(j) [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
62 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(k) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(k) [Plf.'s Rule 7.1 Response, failing to cite any record
evidence].)
63 (Compare Dkt. No. 63, Attach. 1, at ¶ 51(l) [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 51(l) [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
64 (Compare Dkt. No. 63, Attach. 1, at ¶ 53 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 53 [Plf.'s Rule 7.1 Response, failing to cite record evidence
that controverts fact asserted].)
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65 (Compare Dkt. No. 63, Attach. 1, at ¶ 54 [Defs.' Rule 7.1 Statement, citing record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 54 [Plf.'s Rule 7.1 Response, citing record evidence that
fails to controvert facts asserted].)
66 (Compare Dkt. No. 63, Attach. 1, at ¶ 55 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 55 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
67 (Compare Dkt. No. 63, Attach. 1, at ¶ 56 [Defs.' Rule 7.1 Statement, citing record evidence that supports fact
asserted] with Dkt. No. 67, Attach. 10, at ¶ 56 [Plf.'s Rule 7.1 Response, admitting fact asserted].)
68 (Compare Dkt. No. 63, Attach. 1, at ¶ 57 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 57 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
69 (Compare Dkt. No. 63, Attach. 1, at ¶ 58 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 58 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
70 (Compare Dkt. No. 63, Attach. 1, at ¶ 59 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 59 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
71 (Compare Dkt. No. 63, Attach. 1, at ¶ 60 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 60 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
72 (Compare Dkt. No. 63, Attach. 1, at ¶ 61 [Defs.' Rule 7.1 Statement, citing record evidence that supports
fact asserted] with Dkt. No. 67, Attach. 10, at ¶ 61 [Plf.'s Rule 7.1 Response, citing record evidence that fails
to controvert fact asserted].)
73 (Compare Dkt. No. 63, Attach. 1, at ¶ 62 [Defs.' Rule 7.1 Statement, citing record evidence that supports facts
asserted] with Dkt. No. 67, Attach. 10, at ¶ 62[Plf.'s Rule 7.1 Response, failing to cite any record evidence
that controvert facts asserted].)
74 (Compare Dkt. No. 63, Attach. 1, at ¶ 63 [Defs.' Rule 7.1 Statement, citing record evidence that supports facts
asserted] with Dkt. No. 67, Attach. 10, at ¶ 63 [Plf.'s Rule 7.1 Response, failing to cite any record evidence
that controvert facts asserted].)
75 (Compare Dkt. No. 63, Attach. 1, at ¶ 64 [Defs.' Rule 7.1 Statement, citing record evidence that supports
facts asserted] with Dkt. No. 67, Attach. 10, at ¶ 64 [Plf.'s Rule 7.1 Response, either admitting or denying
knowledge of facts asserted].)
76 Cusamano v. Sobek, 604 F.Supp.2d 416, 426 & n. 2 (N.D.N.Y.209) (Suddaby, J.) (citing cases).
77 Cusamano, 604 F.Supp.2d at 426 & n. 3 (citing cases). The Court notes that Plaintiff was served with such
a notice in this case. (Dkt. No. 63, Attach.14.)
78 Cusamano, 604 F.Supp.2d at 426–27 & n. 4 (citing cases).
79 Among other things, Local Rule 7.1(a)(3) requires that the nonmoving party file a response to the moving
party's Statement of Material Facts, which admits or denies each of the moving party's factual assertions in
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matching numbered paragraphs, and supports any denials with a specific citation to the record where the
factual issue arises. N.D.N.Y. L.R. 7.1(a)(3).
80 Cusamano, 604 F.Supp.2d at 427 & n. 6 (citing cases).
81 This is because the rationale for conferring special solicitude to pro se litigants is that, as non-attorneys, they
are inexperienced or unfamiliar with legal procedures or terminology. See John C. Rothermich, “Ethical and
Procedural Implications of ‘Ghostwriting’ for Pro Se Litigants: Toward Increased Access to Civil Justice,” 67
Fordham L.Rev. 2687, 2697 (Apr.1999) (“[T]he special leniency afforded pro se pleadings in the courts ... is
designed to compensate for pro se litigants' lack of legal assistance.”).
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Dean v. Sheehan, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Blue-Striped Flag
Appeal Filed by Dean v. Annucci, 2nd Cir., July 24, 2025
2025 WL 1811183
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
William M. DEAN, Plaintiff,
v.
Cathy Y. SHEEHAN, Deputy Commissioner and
Counsel; David Debejian, Deputy Superintendent of
Programs; Pat Collver, Acting Deputy Superintendent
of Programs; C.F. Leone, Director of Correctional
Library Services, NYS Doccs; Jeffrey McKoy, Deputy
Commissioner of Programs, NYS Doccs, Defendants.
9:22-cv-00746 (BKS/ML)
|
Signed July 1, 2025
Attorneys and Law Firms
Plaintiff pro se: William M. Dean, 11-B-0996, Marcy
Correctional Facility, P.O. Box 3600, Marcy, NY 13403
For Defendants: Letitia James, Attorney General of the State
of New York, Aimee Cowan, Assistant Attorney General, 300
South State Street, Suite 300, Syracuse, NY 13202
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief U.S. District Judge
I. INTRODUCTION
*1 Plaintiff William M. Dean filed this action pro se under
42 U.S.C. § 1983 asserting claims of mail tampering and
denial of access to courts in violation of the First Amendment
against Defendants Cathy Sheehan, Deputy Commissioner
and Counsel for the New York State Department of
Corrections and Community Supervision (“DOCCS”),
Corrine Leone, DOCCS Supervising Librarian and Law
Library Coordinator, Jeffrey McKoy, DOCCS Deputy
Commissioner for Program Services, David Debejian,
Deputy Superintendent of Programs at Marcy Correctional
Facility (“Marcy”), and Patrick Collver, the Acting Deputy
Superintendent of Programs at Marcy. (See generally Dkt.
No. 45). On June 21, 2024, Defendants filed a motion for
summary judgment under Federal Rule of Civil Procedure 56
seeking dismissal of the Amended Complaint. (Dkt. No. 103).
The briefing on this motion has taken a tortured path.
The Court granted Plaintiff six extensions to file a response to
Defendants’ motion, the last of which expired on January 31,
2025. (Dkt. Nos. 106, 109, 115, 119, 121, 130). On February
14, 2025, Plaintiff filed a 3,000-page response to Defendants’
motion for summary judgment. (See Dkt. Nos. 132, 133, 134,
135, 136, 137, 138, 140, 141, 142, 143, 144). As Plaintiff
offered no reason for the untimely filing, the Court ordered
Plaintiff to show “good cause” for failing to comply with the
Court's deadline and set a briefing schedule. (Dkt. No. 139
(citing Fed. R. Civ. P. 16(b)(4))).
On February 20, 2023, prior to the completion of briefing
on the order to show cause, United States Magistrate
Judge Miroslav Lovric, to whom Defendants’ motion for
summary judgment had been referred, issued a Report and
Recommendation that Defendants’ motion be granted and
the Amended Complaint be dismissed on the ground that
Plaintiff had failed to exhaust his administrative remedies.
(Dkt. No. 145). On the understanding that the undersigned
would determine the timeliness of Plaintiff's response,
Magistrate Judge Lovric did not consider “the contents
of Plaintiff's opposition for purposes of [the] Report and
Recommendation.” (Id. at 2 n.1).
On March 14, 2025, this Court issued an Order finding
Plaintiff had established that there was good cause for
accepting Plaintiff's response to Defendants’ motion for
summary judgment as timely, allowing Defendants the
opportunity to file a reply to Plaintiff's response, and advising
the parties that it would consider Plaintiff's response in
connection with the Report and Recommendation. (Dkt. No.
151). As Plaintiff has filed objections to the Report and
Recommendation, (Dkt. No. 149), and Defendants have filed
a reply, (Dkt. No. 160), this matter is, finally, fully briefed.
The Court rejects the Report and Recommendation as moot in
light of the additional briefing and, for the reasons that follow,
grants Defendants’ motion for summary judgment.
II. REPORT AND RECOMMENDATION
Magistrate Judge Lovric recommended that Defendants’
motion for summary judgment be granted on the ground
that Plaintiff failed to exhaust administrative remedies with
respect to his remaining First Amendment mail tampering
and access to the courts claims. (Dkt. No. 145). Finding the
“relevant time period for this action is July 15, 2021, when
Plaintiff was transferred from [Collins Correctional Facility]
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to Marcy, through November 15, 2022,” Magistrate Judge
Lovric determined that the only evidence that Plaintiff filed
a grievance was his deposition testimony that “he filed a
grievance on April 27, 2021,” while he was still at Collins,
(id. at 5), and found no evidence that “Plaintiff file[d] any
grievances at Marcy at all,” during the relevant time period,
(id. at 6). Magistrate Judge Lovric therefore recommended
that Defendants’ motion be granted “for the reasons set forth
in their memorandum of law based on Plaintiff's failure to
exhaust his administrative remedies.” (Dkt. No. 145, at 25
(citing Dkt. No. 103, Attach. 1 at 11–16)). 1
*2 When evaluating Defendant's motion for summary
judgment, Magistrate Judge Lovric was bound by the record
before him and unable to consider Plaintiff's response
submissions. Having subsequently determined that Plaintiff's
response submissions were not untimely and having invited a
reply from Defendants, the motion for summary judgment is
no longer unopposed and must be considered in light of the
entire record. Accordingly, the Court rejects the Report and
Recommendation as moot and considers Defendant's motion
for summary judgment de novo.
III. BACKGROUND 2
A. Collins Correctional Facility
On April 4, 2021, Plaintiff was transferred from Attica
Correctional Facility to Collins Correctional Facility. (Dkt.
No. 45, ¶ 1; Dkt. No. 103-2, ¶ 5; Dkt. No. 132-3, ¶ 5). At
that time, “Plaintiff had more than 18 legal actions pending
in various courts.” (Dkt. No. 103-2, ¶ 4; Dkt. No. 132-2, ¶
4). Plaintiff states that while at Attica, he had “no problems
with using the advance system for obtaining legal copies and
sending legal mail.” 3 (Dkt. No. 45, ¶¶ 172–73). Plaintiff
asserts that in order “to prevent any problems with getting
legal copies made and sending legal mail,” he sent a letter
to A. Schneider, the Deputy Superintendent of Programs
(“DSP Schneider”) shortly after his arrival asking what was
“required” to obtain postage and photocopies, and that on
April 7 and 13, 2021, he sent “advance requests” to DSP
Schneider “for $10.50” and for “$6.80 for legal copies” but
that he received no response to his inquiry or requests. (Id. ¶¶
2–4)). DSP Schneider is not a defendant in this action.
*3 On April 17, 2021, Plaintiff sent a letter to
Defendant Sheehan, DOCCS Deputy Acting Commissioner
and Counsel, about difficulties obtaining legal copies:
I have been at Collins Correctional Facility for the past
two weeks and have tried to get legal copies to notify
several agencies, courts and government officials that I
have moved, but have been denied access to copies.
The story and procedure changes everytime I go to the
law library, and when I do what was told and nothing
happens. I sent several notices to Administration here at
Collins about the issue on my first day here to establish a
working relationship to meet both of our needs. To meet
their procedures and what they wish to do to resolve any
conflicts. I wrote the DSS DSP and Superintendent, with
no responses.
(Dkt. No. 133, at 3).
Plaintiff states that on April 17, 2021, DSP Schneider returned
Plaintiff's “advance requests with a notice ... denying requests
for legal copies.” (Dkt. No. 45, ¶ 6). Plaintiff asserts that on
April 27, 2021, he filed a grievance regarding “legal copies
and legal mail” with the “IGRC Office at Collins by facility
mail as required.” (Id. ¶ 7; Dkt. No. 132–3, ¶ 6; Dkt. No.
103-5, at 80). Plaintiff further asserts that he also sent a notice
that day to DSP Schneider “about legal copies and legal mail,”
“quoted the proper [DOCCS] directives such as 4421... [and]
2788” 4 and “attached a copy of the Inmate Grievance” to the
notice. (Dkt. No. 45, ¶ 7).
On or about May 4, 2021, Plaintiff received a memorandum
from DSP Schneider:
I am in receipt of your April 27, 2021 letter. The
requested advance and the previously unpaid advances
cannot exceed $20.00. Exceeding that amount can only
be approved if you can show that the legal mail must
be sent prior to your receipt of the following week's
free postage allowance due to a court rule, statute of
limitations or other legal deadline.
You have failed to satisfy this requirement and your
outstanding balance exceeds the $20.00 limit. Therefore,
your request is denied.
(Dkt. No. 133, at 6). DSP Schneider's memorandum did not
reference any grievance.
On or about May 6, 2021, Plaintiff received a letter from
Defendant DOCCS Supervising Librarian Leone in response
to Plaintiff's April 17, 2021 letter to Sheehan.” (Id. at
10). Leone advised Plaintiff to “refer” to DSP Schneider's
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April 27, 2021 memo if he “require[d] advance funds”
for photocopies of legal matters and noted that DOCCS
“Directives 4483 & 4421, should clarify any other
concerns.” (Id.).
On or about July 15, 2021, 5 Plaintiff was transferred from
Collins to Marcy. (Dkt. No. 45, ¶ 24).
B. Marcy Correctional Facility
*4 Plaintiff asserts that on July 22, 2021, he sent notice
to the Marcy Superintendent and Deputy Superintendent
of Programs, Defendant David Debejian (“DSP Debejian”)
regarding “legal copies and legal mail as to what they needed
from Dean and what procedures they wished for Dean to
follow for getting legal copies and sending legal mail, because
he was indigent.” (Dkt. No. 45, ¶ 25). Plaintiff states that on
July 26, 2021, DSP Debejian responded, “telling him to do
as always did and follow directives.” (Id. ¶ 26; see id. ¶ 27
(averring that during orientation, DSP Debejian told Plaintiff
to “do as he has done in prior facilities” as “the rules apply no
matter what facility he is in”)).
Plaintiff asserts on September 24, 2021, the law library
supervisor returned “11 disbursement forms and advance
forms” to Plaintiff and explained that DSP Debejian was “not
mailing them because Dean is indigent and over his limit and
required additional proof from the courts.” (Id. ¶¶ 36–38). In
a memo dated that same day, DSP Debejian explained that he
was denying Plaintiff's requested advance for legal postage
because Plaintiff's “balance of unpaid previous advances for
legal mail postage exceed[ed] $20” and “the request must
include proof of a legal deadline” or “justification for the
advance.” (Dkt. No. 103-23, at 1). In his declaration DSP
Debejian, states that at that time, “Plaintiff's advancements
for postage totaled $975.10 and his advances for legal copies
totaled $908.56,” and that Plaintiff had not provided proof of
a legal deadline demonstrating that the mail must be sent prior
to the next week's free postage allowance. (Dkt. No. 103-22,
¶ 11).
In early October 2021, Plaintiff and DSP Debejian met
and discussed Plaintiff's requests for legal mail and copies.
(Dkt. No. 103-25, at 1; Dkt. No. 45, ¶ 53). According to
a memorandum dated October 8, 2021, during the meeting,
DSP Debejian told Plaintiff that in order to “satisfy” Directive
4421, Plaintiff would need a “court rule, court order, statute
of limitations, or other legal deadline” showing “that the
legal mail must be sent prior to receipt of the next week's
free postage allowance.” (Dkt. No. 103-25, at 1). On or
about October 8, 2021, and again on October 12, 2021,
DSP Debejian denied Plaintiff's requests for legal copies and
advance postage for legal mail and returned Plaintiff's legal
mail. (Id. (DSP Debejian denying request but advising that he
had “been in contact with counsel's office as per the directive”
and that “[t]hey are aware of the situation”); Dkt. No. 45, ¶¶
57–58).
In the Amended Complaint, Plaintiff states that on October
22, 2021, he “sent notice” to Sheehan “about problems
with legal copies and legal mail, and denied access to the
courts,” (Dkt. No. 45, ¶ 60), and asserts that he continued
to have difficulty obtaining postage and photocopies in
connection with his ongoing cases in November and
December 2021. (Id. ¶¶ 70–75).
In December 2021, Plaintiff received the following letter from
Sheehan:
Acting Commissioner Annucci has asked me to respond
to your letter dated October 22, 2021, to Library Services
regarding your claims of photocopies and legal mail
issues at Marcy Correctional Facility.
Concerning advances for photocopies, please be advised
that the facility considers approving each advance
request in accordance with Directive No. 2788. In many
instances a document required by the court can be
replicated longhand.
It is recommended that when requesting assistance of
any type from the facility, pertaining to a legally imposed
deadline, whether it is a court order or a statute of
limitations issue, it is well-defined and understandable.
(Dkt. No. 103-26, at 1; Dkt. No. 45, ¶ 76). Sheehan
referred Plaintiff to DSP Debejian's October 8, 2021,
memorandum concerning Plaintiff's “legal mail issues” and
to Directive 4040, regarding available “channels of problem
resolution.” (Dkt. No. 103-26, at 1).
*5 Plaintiff asserts that on January 12 and 17, 2022, he sent
requests to DSP Debejian for “132 total pages of advance
legal copies or civil filing a divorce packet with the Oneida
County Supreme Court.” (Dkt. No. 45, ¶¶ 83–84). According
to Plaintiff, DSP Debejian and “Albany Counsel” denied his
“divorce copies” on January 18, 2022. (Id. ¶ 85). Plaintiff
avers in early March 2022, he received approval for copies
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and for mailing of papers for his divorce action. (Id. ¶¶ 102–
05).
Plaintiff states that on January 21, 2022, he “sent notice to
DSP Debejian about needing advance legal copies and legal
mailing” to comply with a February 4, 2022 deadline in an
order to show cause issued by the Albany County Supreme
Court. (Dkt. No. 45, ¶ 87; Dkt. No. 103-29, at 2 (request
seeking 3,224 copies and “enough legal size envelopes to
mail as said copies as required by the Court and advances for
postage and such”)). DSP Debejian denied Plaintiff's request
in a memorandum dated February 1, 2022, explaining that
although Plaintiff had supplied “the order to show cause as
requested to prove a deadline,” a determination could not be
made “based on the order alone,” and that Plaintiff's request
was therefore denied. (Dkt. No. 103-30, at 1). DSP Debejian
advised Plaintiff, however, that if he had “documents that may
shed light of [sic] any rule, court order, statute of limitation,
or other legal deadline applicable to your circumstance,” he
could submit them for review. (Id.).
DSP Debejian retired in May 2022, at which point, Patrick
Collver assumed the role of Acting DSP. (Dkt. No. 103-22,
¶ 1; Dkt. No. 103-13, ¶ 1). On May 4, 2022, Plaintiff
“[a]dvised” DSP Collver that he “needed approval for copies
3182 pages and legal mail advances” for an Albany County
Supreme Court amended order to show cause. (Dkt. No. 45,
¶ 113). On May 10, 2022, DSP Collver denied Plaintiff's
request. (Id. ¶ 114).
On May 10, 2022, Plaintiff sent DSP Collver a request for
262 copies in connection with a complaint alleging claims
under federal civil rights statutes. (Id. ¶ 115). On May 11,
2022, Plaintiff sent a “letter/notice” to DSP Collver “about
denial of copies and mail service.” (Id. ¶ 118). That same day,
Plaintiff received the following memorandum (dated May 6)
from DSP Collver:
Upon consultation with Counsel's Office I am advising
you of the following:
1. I will authorize an advance for enough copies for the
Order to Show Cause to be served on the Superintendent
and Acting Commissioner. I will need you to specify
exactly how many pages you will need for each.
2. I will not authorize an advance for any exhibits.
You will need to seek leave from the court for copies
of exhibits as your account reflects $3,822.28 of
uncollected advances for legal copies.
(Dkt. No. 103-14, at 1).
Between May 20 and 27, 2022, Plaintiff sent DSP Collver
requests for copies in connection with his civil rights action,
legal mail advances, and for copies of 3,640 “pages.” (Dkt.
No. 45, ¶¶ 124–26; Dkt. No. 103-17, at 1).
In a June 13, 2022, letter to Erin Pfendler, the Marcy
Incarcerated Grievance Program Supervisor, Plaintiff asked
Pfendler “if she could tell him as to what happen to his
grievance filed in Collins on or/about April 27, 2021.” (Dkt.
No. 45, ¶ 139). In response, Pfendler advised Plaintiff to write
to Collins and to “write her back” if he did not receive a
response. (Id. ¶ 140). On or about June 21, 2022, Plaintiff
wrote to the Collins grievance supervisor and requested
information “as to the status of a grievance [he] filed on/or
about April 27, 2021 while being at Collins C.F. it was based
being denied the right to advance legal copies and advanced
legal mail.” (Dkt. No. 133, at 48). Plaintiff explained that
the grievance had not “been resolved prior to [his] leaving”
and he had “not heard from anyone as to what if anything
was happening to said grievance.” (Id.). Plaintiff states that
he received no response to his letter. (Dkt. No. 45, ¶ 144).
On September 1, 2022, Plaintiff sent a letter to Pfendler
asking her to look into the grievance he filed at Collins.
(Id. ¶ 167). On October 27, 2022, Plaintiff received a letter
from Defendant McKoy, DOCCS deputy commissioner of
programs:
*6 This is in response to your letter regarding your
mail.
As a result of you [sic] correspondence, Marcy
Correctional Facility (CF) was contacted and Deputy
Superintendent of Programs (DSP) Fredrickson,
indicated that all outgoing and incoming mail
is processed in accordance with Departmental
Directive #4421, “Privileged Correspondence” and
Department Directive #4422, “Incarcerated Individual
Correspondence Program”. Legal Mail advances are
processed the same day they are received. DSP
Fredrickson also indicated that you were informed
to stop writing extraneous information on your
disbursement requests and you were also asked to put the
correct dates on your requests for advance postage, so it
doesn't appear that your request are not being processed
in a timely fashion. And additional concerns regarding
this matter should be addressed to DSP Fredrickson, who
is in the best position to assist you.
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(Id. ¶ 171-g).
IV. MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
Under Rule 56(a), summary judgment may be granted only
if all the submissions taken together “show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 323, 106 S.Ct. 2548. A fact is “material” if it
“might affect the outcome of the suit under the governing
law,” and is genuinely in dispute “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.
2005) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The
movant may meet this burden by showing that the nonmoving
party has “fail[ed] to make a showing sufficient to establish
the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan
v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013)
(explaining that summary judgment is appropriate where
the nonmoving party fails to “ ‘come forth with evidence
sufficient to permit a reasonable juror to return a verdict in
his or her favor on’ an essential element of a claim” (quoting
In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d
Cir. 2010))).
If the moving party meets this burden, the nonmoving party
must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 248, 250, 106 S.Ct.
2505; see also Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548;
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When
ruling on a summary judgment motion, the district court must
construe the facts in the light most favorable to the non-
moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dallas Aerospace,
Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still,
the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot
rely on “mere speculation or conjecture as to the true nature
of the facts to overcome a motion for summary judgment,”
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)
(citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d
Cir. 1985)). Furthermore, “[m]ere conclusory allegations or
denials ... cannot by themselves create a genuine issue of
material fact where none would otherwise exist.” Hicks v.
Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v.
Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
*7 Where the plaintiff proceeds pro se, the Court must
read his submissions liberally and interpret them “to raise
the strongest arguments that they suggest.” McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos
v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, a
pro se party's “ ‘bald assertion,’ completely unsupported by
evidence, is not sufficient to overcome a motion for summary
judgment.” Jordan v. New York, 773 F. Supp. 2d 255, 268
(N.D.N.Y. 2011) (citing Carey v. Crescenzi, 923 F.2d 18, 21
(2d Cir. 1991)); see also Wagner v. Swarts, 827 F. Supp. 2d
85, 92 (N.D.N.Y. 2011).
B. Analysis
1. Relevant Time Period
Defendants assert that the relevant time period for this case is
July 15, 2021, the date Plaintiff was transferred from Collins
to Marcy, through November 15, 2022, the date Plaintiff
filed the Amended Complaint, and thus solely concerns the
denial of legal copies and postage advances for legal mail
that Plaintiff allegedly experienced while at Marcy—but not
at Collins. (Dkt. No. 103-2, ¶¶ 1, 3). Plaintiff disputes this and
maintains the alleged violations began on or about April 4,
2021, while he was confined at Collins, continued at Marcy,
then at Mid-State Correctional Facility, and continue to the
present. (Dkt. No. 132-3, ¶¶ 1, 3).
The principal “evidence” Defendants rely on in support
of their contention that the Amended Complaint “alleges
wrongdoing associated with the conditions of his confinement
at Marcy, not Collins,” is this Court's March 2, 2023 Decision
and Order (“March 2023 Order”) reviewing the Amended
Complaint under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.
§ 1915A(b). (Dkt. No. 103-2, ¶ 1 (citing Dkt. No. 44,
at 6)). 6 On page 6 of the March 2023 Order, the Court
provided an “Overview of the Amended Complaint,” and
introduced it as follows: “As with the original complaint,
plaintiff's amended and supplemental complaint alleges
wrongdoing associated with the conditions of his confinement
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at Marcy C.F., and reasserts Section 1983 claims against
the same ... defendants.” (Dkt. No. 44, at 6). Although this
sentence unfortunately omits Collins, read in context and
with reference to the Amended Complaint, it is evident this
omission was a simple oversight. Not only do the defendants
it refers to include Sheehan and Leone, whose involvement,
according to Plaintiff, began while he was at Collins,
but the next sentence expressly notes that the Amended
Complaint “includes each of the allegations set forth in the
original complaint,” (id. at 6–7 (emphasis added)), which
the Court previously described as containing “allegations of
wrongdoing during [Plaintiff's] incarceration at Collins ... and
Marcy,” (Dkt. No. 10, at 4). The Court therefore concludes
that the omission of Collins from the March 2023 Order was,
at most, a clerical omission and by no means a preclusive
finding regarding the relevant time period for this case.
More importantly, as even a cursory review reveals, the claims
in the Amended Complaint are centered on Plaintiff's efforts
to obtain legal copies and postage advances for legal mail at
both Collins and Marcy. (See generally Dkt. No. 45). Closer
inspection shows that it refers to Collins more than forty
times and that its “Statement of Facts” begins with Plaintiff's
transfer from Attica Correctional Facility to Collins on or
about April 4, 2021. (Id. at 25).
*8 Defendants’ reliance on Plaintiff's deposition does not
support their position as to the relevant time period, either.
In the section of the deposition that Defendants cite, defense
counsel says: “I'm going to go through each of the defendants”
and “I'm going to have you tell me what role they played
in denying your access to the courts.” (Dkt. No. 103-5, at
29–30). When defense counsel asks Plaintiff whether he
has any claims about Defendant Debejian, who is employed
at Marcy, “with respect to your time at Collins,” Plaintiff
responds: “No, he wasn't here, correct ... As a matter of
fact, there's nobody in here claims against Collins listed as
a defendant.” (Id. at 30). This is correct—the defendants in
this case include three DOCCS officials (Sheehan, Leone, and
McKoy) and two Marcy employees (Debejian and Collver),
but no Collins employees. (Dkt. No. 45). However, defense
counsel next asks Plaintiff about Defendant Sheehan and
whether Plaintiff has “any claims with respect to access to
courts for your time at Collins.” (Dkt. No. 103-5, at 31).
Plaintiff responds, in relevant part: “Its going to be in the
numbered section” of the Amended Complaint, “April 4, ‘21,
I see April 9th also. Cathy Sheehan, yes, April 17th, 2021, I
sent her notice.” (Id.). As Plaintiff's interaction with Sheehan,
according to the Amended Complaint, began while he was
at Collins, Defendants’ reliance on Plaintiff's deposition also
proves unavailing.
The Court therefore concludes that Plaintiff has shown that
the relevant time period began on or about April 4, 2021,
when he was transferred to Collins. (Dkt. No. 45, at 156);
see, e.g., PH Int'l Trading Corp. v. Nordstrom, Inc., No.
07-cv-10680, 2011 WL 13557658, at *2, 2011 U.S. Dist.
LEXIS 175934, at *4 (S.D.N.Y. Oct. 5, 2011) (looking to the
allegations in the complaint regarding the date the parties’
relationship began and the time of the alleged breach in order
to determine relevant time period for purposes of discovery);
Schiavone v. Ne. Utils. Serv. Co., No. 08-cv-429, 2009 WL
801744, at *1, 2009 U.S. Dist. LEXIS 24517, at *3–4 (D.
Conn. Mar. 25, 2009) (same). However, the Court agrees that
the time period ends on November 15, 2022, the date the
Amended Complaint was signed, (Dkt. No. 45, at 156), as
there was no supplemental pleading filed in this case.
2. Personal Involvement – Collins
Having concluded that the relevant time period in this case
began when Plaintiff was transferred to Collins, the Court
considers Defendants’ argument that there is no evidence that
Sheehan or Leone, the only two named Defendants who had
any interaction with Plaintiff while he was at Collins, were
personally involved in interfering with Plaintiff's legal mail or
in denying Plaintiff access to the Courts. (Dkt. No. 103-1, at
16–20, 28–29). Plaintiff opposes Defendants’ motion. (Dkt.
No. 132-4, at 36–42).
It is well-settled that, to establish a defendant's individual
liability in a suit brought under Section 1983, a plaintiff
must show “the defendant's personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013) (citations omitted).
A plaintiff must “allege a tangible connection between the
acts of a defendant and the injuries suffered.” Bass v.
Jackson, 790 F.2d 260, 263 (2d Cir. 1986). There is “no
special rule for supervisory liability,” and “a plaintiff must
plead and prove ‘that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.’ ” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)). The Second Circuit has
explained that “[t]he factors necessary to establish a [§ 1983]
violation will vary with the constitutional provision at issue
because the elements of different constitutional violations
vary,” and “[t]he violation must be established against
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the supervisory official directly.” Id. (second alteration in
original) (internal quotations and citations omitted).
a. Mail Tampering (Interference with Legal Mail)
“[A] prisoner's right to the free flow of incoming and outgoing
mail is protected by the First Amendment” Bacon v. Phelps,
961 F.3d 533, 543 (2d Cir. 2020) (internal citations omitted).
As the Second Circuit has explained, this right is violated
if a prison “regularly and unjustifiably” interferes with an
incarcerated individual's legal mail. Ahlers v. Rabinowitz,
684 F.3d 53, 64 (2d Cir. 2012) (quoting Davis v. Goord,
320 F.3d 346, 351 (2003)). Unconstitutional interference with
mail occurs when, for example, prison officials engage in
“an ongoing practice of unjustified censorship” or delay the
delivery of mail to a prisoner in a way that “cause[s] him
to miss court deadlines or in any way prejudice[s] his legal
actions.” Davis, 320 F.3d at 352.
b. Denial of Access to Courts
*9 The First Amendment right to petition the government,
which applies to the states through the Fourteenth
Amendment, “extends to all departments of the Government,
including the Courts.” Friedman v. Bloomberg L.P., 884
F.3d 83, 90 (2d Cir. 2017) (citation omitted). “A plaintiff's
constitutional right of access to the courts is violated
where government officials obstruct legitimate efforts to
seek judicial redress.” Id. (citation and internal quotation
marks omitted). Circuit Courts of Appeals have “recognized
two variants of right-of-access claims”: (1) “forward-looking
suits,” in which plaintiffs allege that “ ‘systemic official
action’ frustrated their ability to file a suit,” and (2)
“backward-looking” claims “covering suits that ‘cannot now
be tried (or tried with all material evidence), no matter what
official action may be in the future.’ ” Sousa v. Marquez,
702 F.3d 124, 127–28 (2d Cir. 2012) (citation omitted). A
plaintiff may have a backward-looking right-of-access claim,
for example, where the official action “caused the loss or
inadequate settlement of a meritorious case.” Id. at 128.
Moreover, the Second Circuit has not recognized the viability
of backward-looking right-of-access claims. See id. (noting
that the “viability of backward-looking right-of-access claims
is far from clear in this Circuit” and declining to decide the
issue); Kern v. Contento, No. 21-cv-1672, 2022 WL 1112767,
at *3, 2022 U.S. App. LEXIS 10073, at *7 (2d Cir. Apr. 14,
2022) (summary order) (noting that Sousa “declined to decide
whether to follow other circuits in recognizing a backward-
looking claim”).
c. Sheehan and Leone
As discussed above, the only named Defendants with any
connection to Plaintiff's difficulties obtaining copies and
advance legal postage while he was at Collins, are two
DOCCS officials: Sheehan and Leone. 7 Viewed in the light
most favorable to Plaintiff, the evidence of their involvement
at this time is: (1) Plaintiff's April 17, 2021 letter to Sheehan
reporting that he “not receiving photocopies of legal material
and legal cases from the Law Library at Collins,” (Dkt.
No. 133, at 3); and (2) Leone's May 6, 2021 response (on
Sheehan's behalf), (id. at 10). To the extent Plaintiff asserts
claims of mail tampering and denial of access to the courts
against Sheehan arising from her referral of Plaintiff's April
17, 2021, letter to Leone for response, he has failed to
present evidence from which a factfinder could find Sheehan
personally involved. See Vega v. Artus, 610 F. Supp. 2d 185,
199 (N.D.N.Y. 2009) (stating that facility superintendent's act
of “referring [the plaintiff's] letters to staff for investigation
is not sufficient to establish [his] personal involvement”);
Viera v. Sheahan, 531 F. Supp. 3d 666, 672 (W.D.N.Y. 2021)
(finding that the defendant's “receipt” of the plaintiff's “letter
and referral of the matter to a subordinate does not establish
his personal involvement in the alleged failure to process
Plaintiff's mail”). And, although an official's response to
a letter may constitute evidence of personal involvement,
see, e.g., Young v. Choinski, 15 F. Supp. 3d 172, 191 (D.
Conn. 2014) (“[W]hen a supervisory prison official receives
a particular grievance, personally reviews it, and responds
and/or takes action in response, such conduct may constitute
sufficient ‘personal involvement’ to establish individual
liability for the alleged constitutional violation.”), the Court
concludes that Leone's May 6, 2021 letter responding on
Sheehan's behalf, (Dkt. No. 133, at 10), fails to raise an issue
of fact as to any involvement by Leone in interfering with
legal mail or denying Plaintiff access to the courts.
*10 In his April 17, 2021, letter to Sheehan, Plaintiff
explained that he needed to “notify 63” different “agencies,
courts and government officials that [he has] moved” from
Attica to Collins,, but that Collins has “denied access to
copies,” that the “procedure changes” each time he goes to
the library, and that the DSP and Superintendent had not
responded to his inquiries. (Dkt. No. 133, at 3). Plaintiff
also wrote that he was having a “problem with obtaining
legal copies and cases as need to work on [his] several
legal matters.” (Id.). In her response on Sheehan's behalf,
Leone noted Plaintiff's claim of “not receiving photocopies
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of legal materials and legal cases” from the Collins law
library, referred Plaintiff to DSP Schneider's April 27, 2021
memo 8 should he require advance funds and to DOCCS
“Directives 4483 & 4421” if he had “any other concerns,”
advised Plaintiff that a letter to DOCCS “Central Office staff”
did not replace a facility's “problem resolution channels,” and
encouraged Plaintiff to use the grievance process. (Id. at 10).
Although it is undisputed that Plaintiff was litigating 18
cases during the relevant time period, Plaintiff does not
cite any specific case in connection with denial of legal
copies (the subject of his letter to Sheehan and Leone's
response) while at Collins. There is evidence that on May
25, 2021, DSP Schneider denied Plaintiff's May 17, 2021
request for an advance on postage for documents Plaintiff
sought in connection with an “Order to Show Cause” issued
by the Monroe County Supreme Court, in an Article 78
proceeding where Plaintiff was “seeking to compel” the
Monroe County Sheriff to comply with a Freedom of
Information Law request. (Dkt. No. 134-1, at 1, 73 (Dean
v. Baxter, Monroe County Sheriff, filed in Monroe County
Supreme Court, Index No. 2021-537); Dkt. No. 45, ¶¶ 12–
13). Although there is evidence that DSP Schneider also
denied other requests regarding legal copies or mail, (see
Dkt. No. 133, at 8 (May 4, 2021 memorandum regarding
“Legal Copies” and denying “requested advance”); id. at 14
(May 24, 2021 memorandum regarding “Legal Copies” and
denying request for “advances for legal mail”)), nothing in
the record ties those requests to any of the cases Plaintiff
was litigating at that time or to conduct by Leone. Thus,
no reasonable factfinder could conclude that Leone, in
responding to Plaintiff's letter regarding difficulties obtaining
legal copies, was personally involved in interfering with
Plaintiff's legal mail or obstructing Plaintiff's access to the
courts in connection with his Monroe County Article 78
proceeding or any other case. 9 Accordingly, Defendants
Sheehan and Leone are dismissed for lack of personal
involvement.
3. Exhaustion of Administrative Remedies
Defendants move for summary judgment on the ground that
Plaintiff failed to exhaust his administrative remedies prior
to filing this action, as required by the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (Dkt. No.
103-1, at 11–16). In support of their motion, Defendants
have filed declarations by Joshua Becker and Erin Pfendler,
the Incarcerated Grievance Program Supervisors (“IGPS”) at
Collins and Marcy, respectively. (Dkt. Nos. 103-11, 103-31).
Both Becker and Pfendler state that during the relevant time
period, Plaintiff filed no “grievances at all.” (Dkt. No. 103-11,
¶ 8; Dkt. No. 103-31, ¶ 8). Plaintiff responds that he “filed
numerous grievances that never went anywhere” and argues
that his reports to DOCCS and other state officials regarding
his problems with legal copies and legal mail satisfy the
PLRA's exhaustion requirement. (Dkt. No. 132-4, at 14–
16). Plaintiff also argues that there “is no working grievance
system in Collins or Marcy.” (Id. at 14–15).
*11 The PLRA prescribes limitations on an inmate's ability
to bring civil actions with respect to prison conditions.
Specifically, the PLRA provides that “[n]o action shall be
brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). This 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.” Giano v. Goord, 380
F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle,
534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)),
abrogated on other grounds by Ross v. Blake, 578 U.S. 632,
639–42, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016).
Proper exhaustion of administrative remedies is dependent
on the rules and regulations of the prison in which the
grievance is filed; that is, an inmate of a New York State
DOCCS facility must satisfy the requirements, including
procedural and substantive requirements, set forth by DOCCS
regulations to properly exhaust administrative remedies. See
Garcia v. Heath, 74 F.4th 44, 46 (2d Cir. 2023); see also
Hayes v. Dahlke, 976 F.3d 259, 268 (2d Cir. 2020) (“[I]t
is the prison's requirements, and not the PLRA, that define
the boundaries of proper exhaustion.” (alteration in original)
(quoting Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166
L.Ed.2d 798 (2007))).
Failure to exhaust available administrative remedies is an
affirmative defense that must be raised by the defendants.
See Jones, 549 U.S. at 216, 127 S.Ct. 910. Therefore,
the defendants “bear the initial burden of establishing the
affirmative defense of non-exhaustion ‘by pointing to “legally
sufficient sources” such as statutes, regulations, or grievance
procedures’ which demonstrate that ‘a grievance process
exists and applies to the underlying dispute.’ ” Williams
v. Correction Officer Priatno, 829 F.3d 118, 126 n.6 (2d
Cir. 2016) (quoting Hubbs v. Suffolk Cnty. Sheriff's Dep't,
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788 F.3d 54, 59 (2d Cir. 2015)). “If the defendants meet
this initial burden, administrative remedies may nonetheless
be deemed unavailable if the plaintiff can demonstrate that
other factors ... rendered a nominally available procedure
unavailable as a matter of fact.” Hubbs, 788 F.3d at 59 (citing
Hemphill v. New York, 380 F.3d 680, 687–88 (2d Cir. 2004),
abrogated on other grounds by Ross, 578 U.S. at 639–42, 136
S.Ct. 1850).
Under DOCCS regulations, an inmate must generally submit
a grievance within twenty-one days of an alleged occurrence,
see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(1), but
may request an extension within forty-five days of the alleged
occurrence, see id. § 701.6(g)(1)(i)(a). An inmate's grievance
“should contain a concise, specific description of the problem
and the action requested.” Id. § 701.5(a)(2). This requirement,
the Second Circuit has held, is analogous to the requirements
of notice pleading. See Brownell v. Krom, 446 F.3d 305, 310
(2d Cir. 2006); see also Johnson v. Testman, 380 F.3d 691,
697 (2d Cir. 2004) (“The PLRA's exhaustion requirement is ...
is not dissimilar to the rules of notice pleading.”). “As in a
notice pleading system, the grievant need not lay out the facts,
articulate legal theories, or demand particular relief[;] [a]ll
the grievance need do is object intelligibly to some asserted
shortcoming.” Johnson, 380 F.3d at 697 (citing Strong v.
David, 297 F.3d 646, 650 (7th Cir. 2002)).
Subsequent procedural exhaustion of a filed grievance then
involves three steps: (1) the grievance is reviewed and
resolved by the Inmate Grievance Resolution Committee
(“IGRC”), N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b); (2)
the grievant appeals an adverse decision of the IGRC to the
superintendent of the facility at which the grievance was filed,
id. § 701.5(c); and (3) the grievant appeals an adverse decision
of the superintendent to the Central Office Review Committee
(“CORC”), id. § 701.5(d). 10 Upon the rendering of CORC's
decision, or if CORC fails to respond to a grievance within
thirty days of its appeal under the third step of the process, the
grievant has exhausted administrative remedies. See Hayes,
976 F.3d at 269–70.
*12 “Under the PLRA, a prisoner need exhaust only
‘available’ administrative remedies.” Ross, 578 U.S. at 638,
136 S.Ct. 1850. The Supreme Court in Ross v. Blake
identified, inexhaustively, see Williams, 829 F.3d at 123 n.2,
“three kinds of circumstances in which an administrative
remedy, although officially on the books, is not capable of
use to obtain relief.” Ross, 578 U.S. at 643, 136 S.Ct. 1850.
“First, an administrative remedy may be unavailable when
‘it operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates.’ ” Williams, 829 F.3d at 123 (quoting Ross, 578 U.S.
at 643, 136 S.Ct. 1850). “Second, ‘an administrative scheme
might be so opaque that it becomes, practically speaking,
incapable of use.’ ” Id. (quoting Ross, 578 U.S. at 643,
136 S.Ct. 1850). “Third, an administrative remedy may be
unavailable ‘when prison administrators thwart inmates from
taking advantage of a grievance process through machination,
misrepresentation, or intimidation.’ ” Id. at 124 (quoting Ross,
578 U.S. at 644, 136 S.Ct. 1850).
Here, Defendants have established that the grievance
procedures contemplated by DOCCS regulations applied to
inmates at Collins and Marcy. 11 (Dkt. No. 103-2, ¶¶ 12–14;
Dkt. No. 103-11, ¶ 5). The question before the Court, then, is
whether Plaintiff has raised a material issue of fact as to (1)
whether he exhausted these administrative remedies, and (2)
if he did not, whether the remedies were available to Plaintiff
within the meaning established by Ross and Williams.
a. Alleged Grievances at Collins
i. April 27, 2021 Grievance and Exhaustion Based on
Continuing Violation
Although there are no named defendants that could be held
responsible for the alleged constitutional violations at Collins,
the Court has considered Plaintiff's allegation of having filed
an April 27, 2021 grievance at Collins in order to assess
whether there was a grievance that could support exhaustion
based on a continuing violation.
Plaintiff asserts that he filed a grievance on April 27, 2021,
at Collins “about being denied to make legal copies and send
legal mail.” (Dkt. No. 133, at 46). At his deposition, Plaintiff
stated that he had a “copy of the grievance,” (Dkt. No.
103-5, at 81–82), but there is no copy of the grievance in the
record before the Court. According to the verified amended
complaint, Plaintiff filed this “Inmate Grievance” on April 27,
2021, “with the IGRC Office at Collins by facility mail as
required,” 12 (Dkt. No. 45, ¶ 7; see also Dkt. No. 103-5, at
80 (testifying that on April 27, 2021, he “filled the grievance
out and put it in the mailbox address to IGRC”)), but never
received any response, (Dkt. No. 45, ¶ 7). Also, according to
the verified Amended Complaint, on April 27, 2021, Plaintiff
“sent a follow up notice to DSP Schneider about legal copies
and legal mail ... and attached a copy of the Inmate Grievance
filed,” (Dkt. No. 45, ¶ 7; but see Dkt. No. 133, at 6 (DSP
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Schneider's response acknowledging his receipt of Plaintiff's
April 27 letter does not refer to the grievance that purportedly
accompanied the letter)).
Plaintiff has also adduced some evidence that he followed
up on the grievance. Plaintiff testified that he subsequently
wrote to the “superintendent at Collins, didn't get a response”
and “filed an appeal with the superintendent at Collins, didn't
get a response” and that he undertook these actions “in
’21.” 13 (Dkt. No. 103-5, at 80–81). In a letter dated June 13,
2022, more than a year after purportedly filing the grievance,
Plaintiff sent a letter to Pfendler, the Marcy grievance
supervisor, inquiring into “the status of a grievance [he] filed
on or about April 27, 2021 at Collins Correctional Facility,
about being denied to make legal copies and send legal
mail.” (Dkt. No. 133, at 46). On Pfendler's recommendation,
(id. at 47), Plaintiff sent a letter to the Collins Grievance
Supervisor, “requesting information as to the status of a
grievance [he] filed on/or about April 27, 2021 while” at
Collins and described the grievance as “based [sic] being
denied the right to advance legal copies and advanced legal
mail,” (id. at 48 (letter dated June 21, 2022)). On September
1, 2022, Plaintiff notified Pfendler that he had not received
a response from Collins and inquired how to proceed. (Dkt.
No. 133, at 49). On June 15, 2023, Plaintiff testified that
he “recently” sent a letter to the Central Office Review
Committee regarding the April 27, 2021 grievance. (Dkt. No.
103-5, at 82).
*13 Defendants dispute Plaintiff's assertion that he filed
a grievance on April 27, 2021, or at any other time while
he was at Collins. In a declaration, Becker, the Collins
Grievance Program Supervisor states that Collins has no
record of this grievance and that Plaintiff filed no grievances
“while incarcerated at Collins from April 2021 through July
2021.” (Dkt. No. 103-11, ¶ 8). In addition, none of the
memoranda issued by DSP Schneider following Plaintiff's
purported filing of the grievance (and sending a copy to DSP
Schneider) references a grievance. (Dkt. No. 133, at 6, 8, 14,
39).
In Williams v. Correction Officer Priatno, the Second Circuit
found that when a grievance is delivered by an inmate in a
Special Housing Unit to a correction officer for filing and that
grievance is never subsequently filed or answered, DOCCS
“regulations do not adequately outline the process to appeal
or otherwise exhaust administrative remedies.” 829 F.3d at
124. “On their face,” the Second Circuit held, “the regulations
only contemplate appeals of grievances that were actually
filed.” Id. And under the circumstances in that case, “the
grievance procedures that were technically available to [the
plaintiff] so opaque and confusing that they were, ‘practically
speaking, incapable of use,’ ” and therefore, “in giving his
grievance to the correction officer, [the plaintiff] exhausted
all administrative remedies that were available to him.” Id. at
126 (quoting Ross, 578 U.S. at 643, 136 S.Ct. 1850).
However, “mere contentions or speculation” regarding
mishandling of a grievance “do not create a genuine issue
of material fact when there is no evidence to support the
allegations.” Jackson v. Moore, No. 21-cv-1001, 2023 WL
4710869, at *6, 2023 U.S. Dist. LEXIS 65814, at *15
(N.D.N.Y. Apr. 14, 2023) (quoting Rodriguez v. Cross, No.
15-cv-1079, 2017 WL 2791063, at *7, 2017 U.S. Dist.
LEXIS 71337, at *19 (N.D.N.Y. May 9, 2017)), report and
recommendation adopted, 2023 WL 4711091, 2023 U.S.
Dist. LEXIS 126588 (N.D.N.Y. July 24, 2023)). Rather, a
plaintiff must provide some corroboration of a claim that
a grievance was submitted, such as evidence demonstrating
when the grievance was written, the content of the grievance,
how the plaintiff attempted to file the grievance, or that the
plaintiff followed up with prison officials on the disposition
of the grievance. See Simpson v. Price, No. 19-cv-1413, 2022
WL 336540, at *3, 2022 U.S. Dist. LEXIS 20857, at *7–8
(N.D.N.Y. Feb. 4, 2022); see also Stephanski v. Allen, No. 18-
cv-76, 2020 WL 806331, at *9, 2020 U.S. Dist. LEXIS 11028,
at *22–25 (N.D.N.Y. Jan. 22, 2020) (“Although [the plaintiff]
fails to proffer copies of the grievance(s) he attempted to
file ..., his claims are supported by evidence suggesting
that he attempted to file a grievance ... including: (1) [the
plaintiff]’s deposition testimony; (2) [the plaintiff]’s letter
to the ... Grievance Committee; (3) [the plaintiff]’s letter
to [a grievance supervisor]; (4) [a subsequent grievance];
and (5) [the plaintiff]’s Appeal Statement referring the
Superintendent's decision to CORC for review.”), report and
recommendation adopted, 2020 WL 777268, 2020 U.S. Dist.
LEXIS 26918 (N.D.N.Y. Feb. 18, 2020).
As discussed, although Plaintiff does not name any Collins
staff members as defendants in this case, he has sued the
two DOCCS officials with whom he corresponded while
at Collins: Sheehan, DOCCS Deputy Commissioner and
Counsel; and Leone, DOCCS Supervising Librarian and Law
Library Coordinator. Plaintiff could not recall who, if anyone,
he named in the April 27 grievance, but “[t]he New York
IGP regulations do not state that a prisoner's grievance must
name the responsible party.” See Espinal v. Goord, 558 F.3d
119, 126 (2d Cir. 2009). “[T]he IGP regulations offer the
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general guidance that a grievance should ‘contain a concise,
specific description of the problem,’ and the complaint form
does not instruct the inmate to name the officials allegedly
responsible for misconduct.” Id. (citing N.Y. Comp. Codes R.
& Regs., tit. 7, § 701.7(a)(1)(i)); see also White v. Williams,
No. 9:12-cv-1775, 2016 WL 4006461, at *5, 2016 U.S. Dist.
LEXIS 81972, at *13 (N.D.N.Y. June 22, 2016) (“[I]nsofar
as Plaintiff's supervisory claims relate to underlying conduct
that was the subject of a fully exhausted grievance process,
a separate grievance detailing the supervisory liability, or
specifically naming the supervisors, is not a prerequisite
to suit.”), report and recommendation adopted, 2016 WL
4005849, 2016 U.S. Dist. LEXIS 96337 (N.D.N.Y. July 25,
2016); Jones, 549 U.S. at 217, 127 S.Ct. 910 (“[N]othing
in the PLRA statute imposes a ‘name all the defendants’
requirement.”); Johnson v. Johnson, 385 F.3d 503, 522 (5th
Cir. 2004) (“[W]e are mindful that the primary purpose of
a grievance is to alert prison officials to a problem, not to
provide personal notice to a particular official that he may be
sued.”).
*14 Here, even assuming that Plaintiff satisfied his burden
with respect to an April 27 grievance about “being denied
to make legal copies and send legal mail,” Plaintiff has
not shown that this falls within the exception the Second
Circuit identified in Johnson v. Killian, pursuant to which
a prior grievance might serve to exhaust “administrative
remedies with respect to [a] continuing violation” of
constitutional rights. 680 F.3d 234, 239 (2d Cir. 2012).
In Johnson, the plaintiff filed and exhausted a grievance
“concerning limitations on congregational prayer” at a
Federal Correctional Institution in Otisville, New York.
680 F.3d at 236. The plaintiff's religious beliefs required
congregational prayer five times a day, but the Otisville
policy provided the prison chapel only once a day. Id. After
the plaintiff exhausted his grievance, Otisville “substantially
ceased enforcing the relevant policy.” Id. at 236–37. Two
years later, however, following the arrival of a new
warden, the policy “restricting congregational prayer was
reimplemented” and the plaintiff filed suit without filing a
second grievance. Id. at 237.
Concluding that the plaintiff's first grievance was sufficient
to exhaust his administrative remedies regarding his
congregational prayer policy claim, the Second Circuit
vacated the district court's dismissal of this claim. Id. In
reaching this conclusion, the Circuit recognized that “[t]he
purpose of the PLRA is to reduce the quantity and improve the
quality of prisoner suits[,] and to afford corrections officials
time and opportunity to address complaints internally before
allowing the initiation of a federal case” and found the
plaintiff's prior grievance “provided the prison administration
with notice of, and an opportunity to resolve, the same
problem that would continue intermittently” through the
two years that followed. Id. at 238 (quoting Amador v.
Andrews, 655 F.3d 89, 96 (2d Cir. 2011)). It explained
that because the issue the plaintiff “would have raised”
in a second grievance—“the inadequacy of the spaces and
times allotted for congregational prayer—was identical to
the issue he exhausted” in his prior grievance, the plaintiff's
prior grievance “was sufficient to exhaust his administrative
remedies with respect to the continuing limitations on
congregational prayer at FCI Otisville.” Id. at 239. However,
the Circuit expressly limited its holding “to cases in which a
prior grievance identifies a specific and continuing complaint
that ultimately becomes the basis for a lawsuit” and stressed
“that generalized complaints regarding the conditions of
an inmate's confinement will [not] suffice to shortcut the
administrative remedy process.” Id.
In this case, even viewed in the light most favorable to
Plaintiff, the alleged April 27 grievance about “being denied
to make legal copies and send legal mail,” (Dkt. No. 133,
at 46), suggests, at best, a generalized complaint about legal
copies and legal mail at Collins. Thus, although Plaintiff
contends that he continued to have difficulties obtaining legal
copies and advance postage for legal mail there is no basis on
which to conclude that an April 27 grievance was sufficient
to exhaust claims arising at Marcy. See Rose v. Annucci,
No. 16-cv-787, 2018 WL 2729259, at *6, 2018 U.S. Dist.
LEXIS 67017, at *15 (N.D.N.Y. Apr. 19, 2018) (finding that
while “hypothetical enforcement concerns may have been
part of plaintiff's motivation at the time that he filed” prior
grievances, he failed to show “that the issues raised” in
prior grievances asserting that religious meal form “was an
unconstitutional procedural requirement for his attendance
at the Eid-Ul-Adha festival,” challenging “the registration
deadline for Ramadan,” and asserting the “belief that he
was being penalized for refusing to sign the Religious Meal
Form,” were “identical with” the plaintiff's later claim that
he “signed the Religious Meal Form, but was penalized
when he stopped attending group Ramadan meals and refused
to take part in counseling”), report and recommendation
adopted, 2018 WL 2727874, 2018 U.S. Dist. LEXIS 94735
(N.D.N.Y. June 6, 2018). Thus, even assuming Plaintiff
exhausted administrative remedies regarding the April 27,
2021 grievance at Collins, it was not sufficient to place
DOCCS officials at Marcy 14 on notice that Plaintiff was
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being wrongfully denied legal copies and advance postage for
legal mail. Accordingly, the Court concludes that Plaintiff's
alleged April 27, 2021 grievance fails to raise a triable issue
of fact with respect to exhaustion.
ii. June 15, 2021 Grievance
*15 During his deposition, Plaintiff testified that he did not
file any grievances at Collins, other than the one he filed
on April 27, 2021. (Dkt. No. 103-5, at 84–85). However, in
the declaration Plaintiff filed in opposition to Defendants’
motion for summary judgment, Plaintiff states that he filed
“a grievance[ ] with Collins on ... June 15, 2021” that was
“related to issues with not being able to send 10 pieces of
legal mail by advance on May 25, 2021, and was refused
by Collins.” (Dkt. No. 132-3, at 4, 8–9). “The ‘sham issue
of fact’ doctrine ‘prohibits a party from defeating summary
judgment simply by submitting an affidavit that contradicts
the party's previous sworn testimony.’ ” Moll v. Telesector
Res. Grp., Inc., 760 F.3d 198, 205 (2d Cir. 2014) (emphasis
omitted) (quoting In re Fosamax Prods. Liab. Litig., 707
F.3d 189, 193 (2d Cir. 2013)). Thus, Plaintiff's contradictory
declaration in insufficient to create a triable issue of fact as to
whether he filed a second grievance while at Collins. And, in
any event, Plaintiff offers no evidence that would corroborate
his filing of this grievance. Plaintiff cites his handwritten
“Mail Log” as evidence that he filed this grievance, but it
contains no supporting factual details and only states the
following: “June 15, 2021, sent grievance and claim form
superintendent.” (Dkt. No. 136, at 24). Nor has Plaintiff
provided copies of a June 15 grievance or any evidence of
follow up. Accordingly, the Court finds Plaintiff's belated
assertion regarding the filing of a second grievance at Collins
fails to create a material issue of fact as to exhaustion.
b. Alleged Grievances at Marcy
i. September 29, 2021 Grievance
The Amended Complaint alleges that on or about September
29, 2021, Plaintiff sent a letter to Patrick Reardon, the
Superintendent of Marcy, regarding Plaintiff's “problems
with” being “denied access to the Courts” and stating
that Plaintiff was enclosing a grievance for “review and
filing.” (Dkt. No. 45, at 13, 34). In opposition to Defendants’
motion for summary judgment, Plaintiff filed a copy of a
September 30, 2021 letter he sent to Superintendent Reardon
outlining the difficulties he was having with Debejian with
respect to legal mail and legal copies and stating he has
“enclosed a grievance to be filed, please.” (Dkt. No. 142, at
40). There does not appear to be a copy of this grievance
in the record and there is no evidence Plaintiff properly
filed this grievance. In any event, sending a grievance to
the superintendent does not comply with DOCCS's inmate
grievance procedure. See Beatty v. Goord, 210 F. Supp. 2d
250, 255–56 (S.D.N.Y. 2000) (“[W]riting letters to ... the
[s]uperintendent ... [is] not sufficient to comply with the
Inmate Grievance Program”) (citation omitted).
ii. June 9, 2022 Grievances
During his June 15, 2023, deposition, Plaintiff was asked
whether, after filing the April 27, 2021, grievance, he filed
another grievance before April 19, 2023. (Dkt. No. 103-5,
at 85). Plaintiff responded “no, I wouldn't have.” (Id. at
84). Plaintiff explained that “the grievance that I had out
there was already running as far ... as I knew” and that
after the April 27, 2021 grievance, he “went over and above
the grievance process and ... started contacting everybody ...
because obviously grievances weren't working.” (Id. at
85). 15 Following the deposition, Plaintiff sent a letter (dated
the same day as the deposition) to defense counsel “to follow
up on some of the questions [he was asked] during the
deposition.” 16 (Dkt. No. 133-5, at 6). Plaintiff explained that
he reviewed his “mail log books to see if there was any
grievance I filed while at Marcy” and “came across some
entries, and one is on June 9, 2022, that I sent a Grievance
to IGRC, two of them actually. One was about Collver and
Debejian, as to advance legal mail and legal copies.... The
other one dealt with not receiving my monthly trust fund
account statements.” 17 (Id. at 6–7). Plaintiff acknowledged,
however, that he had only mentioned the grievance regarding
monthly statements in the Amended Complaint. (Id. at 7
(citing Dkt. No. 45, ¶ 136 (“June 9, 2022, Dean sent grievance
to IGRC in person about missing monthly statements.”)).
Even crediting the statements in Plaintiff's letter (which
appears to be verified, (id. at 14)), Plaintiff has not provided
the Court with a copy of any information regarding how
he filed this grievance or any documentation of any such
grievance; there is no evidence that he made follow-up
inquiries regarding a June 9, 2022 grievance, see, e.g., Gibbs
v. Gadway, No. 19-cv-281, 2019 WL 5191506, at *5, 2019
U.S. Dist. LEXIS 177879, at *2 (N.D.N.Y. Oct. 15, 2019)
(finding conclusory claim subject to dismissal where copies
of grievance appeals allegedly filed were not submitted as
evidence), report and recommendation adopted, 2020 WL
1227156 at *3, 2020 U.S. Dist. LEXIS 43719 at *7 (N.D.N.Y.
Mar. 13, 2020). Accordingly, the Court finds Plaintiff has
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failed to identify a material issue of fact with respect to his
purported June 9, 2022 grievance.
iii. Availability of Grievance System at Marcy 18
*16 Although Plaintiff has failed to raise a material issue of
fact as to whether he filed any grievance at Marcy, the Court
has, for the sake of completeness, considered his assertion
that the administrative grievance process was “unavailable”
to him at Marcy because prison officials took grievances and
threw them away or retaliated when inmates filed grievances.
(Dkt. No. 132-4, at 14–15; see also (Dkt. No. 103-5, at 83
(Plaintiff testifying that the grievances he filed at Marcy had
“a habit of disappearing” and that he did not know “if it's the
officers taking the grievances and throwing them away when
they see who they're addressed to or what's going on”)).
Defendants reply that Plaintiff's contention that there is
no working grievance system at Marcy is “untrue and
baseless.” (Dkt. No. 160, at 13). As noted above, Defendants
have filed a declaration by Pfendler, the Marcy Grievance
Supervisor, who states that “Marcy currently has a fully
functioning grievance process and had a fully functioning
grievance process from July 2021 through November 2022,”
while Plaintiff was at Marcy. (Dkt. No. 103-31, ¶ 6). Pfendler
further states that:
Incarcerated Individuals housed in
general population at Marcy are
provided incarcerated grievance
complaint forms and envelopes
upon request. Incarcerated
Individuals can file their grievance
complaints by submitting their
grievance complaints in a sealed
envelope to ensure confidentiality.
An Incarcerated Individual can
deposit a grievance complaint,
addressed to the Incarcerated
Grievance Program office, in the
intra-facility mailbox that is located
on their housing unit.
(Id. ¶ 7).
In his declaration in opposition to summary judgment,
Plaintiff states that “Marcy's grievance system” is nonexistent
“as there is problems with staff interfering with grievances
by intercepting the mail or stealing the grievance from the
grievance office or retaliating for ones that had already been
filed in the system.” (Dkt. No. 132-3, ¶ 12). In support of this
statement, Plaintiff filed seven nearly identical declarations
by individuals incarcerated at Marcy, including one by
Plaintiff himself, stating:
[A]ll I/Is in Marcy who spent
anytime here during those time
frames, and still ongoing to date,
know that if you put a grievance
in the mailbox it will never make
it to the Grievance office. The COs
will remove it from the mailbox
and destroy it and then retaliate
against the person trying send the
grievance, unless it is minor and
note related to Marcy. There is
no function grievance process per
the Constitution of otherwise at
Marcy ... since at the very minimum
July 2021.
(Dkt. No. 133-3, at 3). One of the declarations by an
incarcerated individual states that on August 15, 2022, the
declarant observed Plaintiff “being told by a Sgt. that he
would have to move out of B-2 due to an issue that alleged he
had with them about a grievance.” (Dkt. No. 133-4, at 3). In
his declaration in opposition to summary judgment, Plaintiff
identifies the Marcy Sergeant who allegedly retaliated against
him as Thomas Coomber, and states that Coomber moved
him in retaliation for “a grievance Plaintiff tried to file on/
or about August 12, 2022, by putting into the mailbox in the
B-2 Dorm.” 19 (Dkt. No. 132-3, at 8). Plaintiff states that he
had forgotten about the incident until another incarcerated
individual reminded him on October 14, 2024. (Id.).
In the Second Circuit, “[t]he test for deciding whether the
ordinary grievance procedures were available must be an
objective one: that is, would a similarly situated individual
of ordinary firmness have deemed them available.” Hemphill,
380 F.3d at 688 (quotation marks omitted). And as to
retaliation, “[i]t is well settled that a plaintiff's ‘generalized
fear’ of retaliation ‘is insufficient to excuse his failure’ to
file a grievance.” Hall v. Annucci, No. 19-cv-5521, 2022 WL
3903255, at *9, 2022 U.S. Dist. LEXIS 156492, at *24–25
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(S.D.N.Y. Aug. 30, 2022) (quoting Little v. Mun. Corp., City
of New York, No. 12-cv-5851, 2017 WL 1184326, at *12,
2017 U.S. Dist. LEXIS 46944, at *32 (S.D.N.Y. Mar. 29,
2017)), aff'd, No. 22-2031, 2023 WL 7212156, 2023 U.S.
App. LEXIS 29103 (2d Cir. Nov. 2, 2023).
*17 In this case, the allegations in the declarations filed
by Plaintiff and six individuals incarcerated at Marcy
attesting to the destruction of non-minor grievances and
retaliation “against the person trying to send the grievance”
are devoid of factual detain and constitute generalized
allegations of retaliation or interference. (Dkt. No. 133-3, at
3). There is no indication that the alleged retaliation for a
grievance Plaintiff attempted to file in August 2022 has any
connection to this action. Moreover, this cursory allegation
is unaccompanied by facts suggesting threats or intimidation,
and was insignificant insofar as Plaintiff admittedly did not
recall it two years later. (Dkt. No. 132-3, ¶ 17).
The “sworn statements” by Plaintiff and the six other
inmates that officers removed and destroyed grievances are
insufficient to create a question of fact as to the availability
of the Marcy grievance system. Neither Plaintiff nor the
inmates who filed declarations offer any factual details or
specific examples. “Courts within the Second Circuit have
continuously held that mere contentions or speculation of
grievances being misplaced by officers do not create a
genuine issue of material fact when there is no evidence to
support the allegations.” Blake v. Porlier, No. 18-cv-1008,
2019 WL 7484052, at *5, 2019 U.S. Dist. LEXIS 173760, at
*12–13 (N.D.N.Y. Oct. 4, 2019) (quotation marks omitted),
report and recommendation adopted, 2020 WL 58613, 2020
U.S. Dist. LEXIS 1207 (N.D.N.Y. Jan. 6, 2020); see also
Khudan v. Lee, No. 12-cv-8147, 2016 WL 4735364, at *6,
2016 U.S. Dist. LEXIS 122217, at *20 (S.D.N.Y. Sept. 8,
2016) (holding that under Ross, mere stand alone contentions
of mail tampering without support and particularity cannot
deem administrative remedies unavailable).
Moreover, although Plaintiff states in his declaration that
there was a “problem” with staff at Marcy “retaliating for
[grievances] that had already been filed,” (Dkt. No. 132-3, ¶
12), he does not state in his declaration or verified Amended
Complaint that he did not file grievances at Marcy because he
was afraid of retaliation. Thus, the Court finds Plaintiff has
failed to identify a material issue of fact as to the exhaustion,
or availability, of administrative remedies. Accordingly,
Defendants’ motion for summary judgment dismissing the
Amended Complaint on the ground that Plaintiff failed to
exhaust his administrative remedies is granted.
V. MOTION TO SEAL
Plaintiff moves to seal the sworn statements he submitted
in opposition to Defendants’ motion for summary judgment.
(Dkt. No. 132 (citing Dkt. Nos. 133-3, 133-4)). Plaintiff
asserts that disclosure of the contents of the statements “will
cause retaliation and/or serious physical and mental harm”
to the incarcerated individuals who provided the statements.
(Dkt. No. 132-1, ¶ 4).
“[D]ocuments submitted to a court for its consideration in a
summary judgment motion are –as a matter of law—judicial
documents to which a strong presumption of access attaches,
under both the common law and the First Amendment.”
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121
(2d Cir. 2006). That “strong presumption” must be balanced
against, as relevant here, “the privacy interests of ‘innocent
third parties.’ ” Wiav Sols. Inc. v. HTC Corp., No. 19-cv-4978,
2021 WL 871415, at *1, 2021 U.S. Dist. LEXIS 43997, at
*3 (S.D.N.Y. Mar. 9, 2021) (quoting S.E.C. v. TheStreet.Com,
273 F.3d 222, 232 (2d Cir. 2001)). “However, the fact that a
third party's privacy interests are at stake does not obviate the
need for the proposed redactions to be narrowly tailored to
protect those interests.” Id.
Here, Plaintiff seeks wholesale sealing of each sworn
statement, but as the statements are nearly identical and
contain no identifying information other than the individual's
“NYS DIN” number and name, there appears to be little, if
any, privacy interest implicated by the substantive contents
of the statement. However, as third parties making statements
in support of Plaintiff, the publication of the names and
DIN numbers of these incarcerated individuals may implicate
certain privacy interests, and thus redaction is warranted.
The Court therefore finds that the redaction of names and
DIN numbers from each statement is necessary to protect
each individual's privacy interest, “is essential to preserve
higher values and is narrowly tailored to serve that interest.”
Lugosch, 435 F.3d at 120 (quotation omitted). However,
Plaintiff offers no explanation for sealing his own sworn
statement, (Dkt. No. 133-3, at 16–17), a letter dated August
17, 2022, (Dkt. No. 133-4, at 4–5), a handwritten note from
a Marcy officer to Plaintiff, (Dkt. No. 133-4, at 6), or the list
of names and DIN numbers of individuals housed at Collins
and Marcy at the same time as Plaintiff, (Dkt. No. 133-3,
at 22). Thus, as Plaintiff has failed to identify any interest
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that outweighs the strong presumption of access to these
documents, his motion to seal these documents is denied.
*18 Accordingly, Plaintiff's motion to seal is granted in part
and denied in part as follows: the Clerk is directed to redact
the names and DIN numbers from Dkt. No. 133-3, at 3–15,
20–21 and Dkt. No. 133-4, at 3 and unseal the remainder of
both documents. 20
VI. CONCLUSION
For these reasons, it is hereby
ORDERED that the Report and Recommendation (Dkt. No.
145) is REJECTED as moot; and it is further
ORDERED that Defendants’ motion for summary judgment
(Dkt. No. 103) is GRANTED; and it is further
ORDERED that as the time period for exhaustion of
administrative remedies has expired, the Amended Complaint
(Dkt. No. 45) is DISMISSED; and it is further
ORDERED that Plaintiff's motion to seal (Dkt. No. 132) is
GRANTED in part and DENIED in part as follows: the
Clerk is directed to redact the names and DIN numbers from
Dkt. No. 133-3, at 3–15, 20–21 and Dkt. No. 133-4, at 3 and
unseal the remainder of both documents; and it is further
ORDERED that the Clerk is directed to enter judgment
accordingly, close this case, and serve a copy of this Order
upon the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1811183
Footnotes
1 Magistrate Judge Lovric accepted Defendants’ statement of undisputed facts without considering the verified
Amended Complaint or the context in which Defendants’ record citations arose. For example, Magistrate
Judge Lovric recommended that the Court find Defendants’ assertion that “[t]he relevant time period for
this action is July 15, 2021 (when Plaintiff was transferred to Marcy), through November 15, 2022” to be
“supported” based principally on a partial sentence in prior Order summarizing Amended Complaint. (Dkt.
No. 145, at 4–5; see Dkt. No. 44, at 6). However, a basic review of the Order (or of the Amended Complaint)
dispels any notion that this action solely concerns events at Marcy. (See supra Part IV.B.1). In any event,
as the Report and Recommendation is moot in light of the additional briefing, the Court does not further
consider it.
2 The facts are drawn from Defendants’ statement of material facts and Plaintiff's response to Defendants’
statement of material facts, (Dkt. Nos. 103-2, 132-3), to the extent the facts are supported by “particular parts
of materials in the record,” including, among other things, depositions, affidavits or declarations, or other
documents. Fed. R. Civ. P. 56(c). The Court has also considered Plaintiff's Amended Complaint, which is
verified. (Dkt. No. 45); see Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (explaining that a “verified
complaint is to be treated as an affidavit ... and [may] be considered in determining whether material issues
of fact exist[.]”) (citations omitted). The facts are construed in the light most favorable to Plaintiff as the non-
moving party. Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).
3 Under DOCCS Directive 4421, 7 N.Y.C.R.R. § 721.3(a)(3)(ii), each incarcerated individual receives “a weekly
free postage allowance equivalent to five domestic first class one ounce letters,” and “[t]o ensure that indigent
incarcerated individuals maintain their right of access to the courts,” facilities “shall ... advance request[s]”
for postage for legal mail “if the incarcerated individual has insufficient funds,” and “the balance of unpaid
previous advances ... do not exceed $20.” 7 N.Y.C.R.R. § 721.3(a)(3)(iv). However, even if an incarcerated
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individual does not qualify for an “advance” on postage because his unpaid balance exceeds $20, Directive
4421, facility staff must consult “with the department's office of counsel” before denying the request. Id.
DOCCS Directive 4483 governs “photocopying services,” and provides that if an incarcerated individual “does
not have sufficient funds for the purchase of copies ... he is entitled to obtain an advance from the facility
when he establishes that the documents sought to be copied are required by the courts and cannot be
replicated longhand.” (Dkt. No. 103-22, ¶ 7). “Advances may only be approved by the Law Library Supervisor,
in consultation with the Law Library Administrator or the Office of Counsel.” (Id.) (quotation marks omitted).
4 DOCCS Directive 2788, cited by Plaintiff, governs collection and repayment of inmate advances and
obligations and “how and when a DOCCS facility will deduct money from an account without the inmate's
consent.” Liner v. Fischer, No. 11-cv-6711, 2013 WL 1832316, at *1, 2013 U.S. Dist. LEXIS 62885 (S.D.N.Y.
May 2, 2013) (quotation marks omitted).
5 Plaintiff states in the Amended Complaint that on July 14, 2021, while at Collins, he was told “to packup
everything” as “he was being transferred to another facility” and that he was “located at Marcy C.F. as of July
16, 2021.” (Dkt. No. 45, ¶¶ 23–24). The actual date of transfer is immaterial.
6 Defendants also cite the Amended Complaint and a page from Plaintiff's deposition in support of their
argument. (Dkt. No. 103-2, ¶ 1 (citing Dkt. No. 45; Dkt. No. 103-5, at 30)).
7 McKoy is also a DOCCS official and is named as a Defendant. However, there is no evidence of his
involvement while Plaintiff was at Collins. Indeed, other than being copied on a June 5, 2022, letter Plaintiff
sent to Defendant Collver, (Dkt. No. 45, ¶ 132), the first evidence of any involvement by McKoy is a letter to
Plaintiff dated October 22, 2022, (id. ¶ 117-g; Dkt. No. 133, at 53). Accordingly, the Court does not consider
McKoy here.
8 This memo does not appear to be in the record.
9 Nor is there evidence of any harm to the Article 78 proceeding as Plaintiff subsequently obtained approval
from DSP Schneider on or about July 6, 2021, for copies and mailings in connection with “a new Order to
Show Cause from the Monroe County Supreme Court.” (Dkt. No. 45, ¶¶ 20–21, 23; see also Dkt. No. 133,
at 39 (approving advances for legal mail and copies)).
10 Complaints of “harassment,” which is not applicable here are subject to a different, expedited procedure. See
N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.5(a)(2), 701.8.
11 While Plaintiff denies this factual assertion, he does not meaningfully dispute that DOCCS grievance
procedures applied at Collins or Marcy but instead asserts there are problems with staff interference and
retaliation. (Dkt. No. 132-3, ¶¶ 11–12).
12 In his declaration, Becker the Collins Grievance Supervisor states an inmate can file a grievance “by
submitting their grievance complaints in a sealed envelope to ensure confidentiality. An Incarcerated
Individual can deposit a grievance complaint, addressed to the Incarcerated Grievance Program office, in the
intra-facility mailbox that is located on their housing unit.” (Dkt. No. 103-11, ¶ 6).
13 Plaintiff also testified that he wrote “[t]he superintendent” and told her that he wanted “to know what happened
to the letter that [he] wrote her in ’21, about the missing ... grievance that [he] never got a response from” and
that the superintendent said “can't find any record of it” and told Plaintiff to write “a note basically what the
grievance is about” and that she would “see if” she could locate it or come up with ... some type of response ...
as to what happened” but that the superintendent has not responded further. (Dkt. No. 103-5, at 83–84).
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14 There appears to be little, if any, guidance in the Second Circuit concerning whether a prior grievance that
identifies a specific and continuing complaint, could serve to exhaust administrative remedies as to claims
arising at a different correctional facility.
15 Plaintiff further testified:
Q. So after you got transferred to Marcy in July 2021, you didn't write any grievances there about what
was going on there as far as the mail tampering and the access to courts?
A. No.
(Dkt. No. 103-5, at 86).
16 The letter is dated June 15, 2023, the same day as the deposition. (Dkt. No. 133-5, at 6).
17 There does not appear to be an entry in Plaintiff's mail logs, (Dkt. No. 136), concerning a grievance on June
9, 2022.
18 To the extent Plaintiff argues there was no working grievance system at Collins, the Court notes that in his
declaration, Becker, the Grievance Supervisory at Collins, states that, in accordance with DOCCS Directive
4040, Collins “had a fully functioning grievance process from April 2021 through July 2021,” the time period
when Plaintiff was at Collins. (Dkt. No. 103-11, ¶ 5). Plaintiff has presented no evidence disputing this
statement.
19 Plaintiff does not suggest this grievance concerned legal copies or legal mail. Further, it does not appear to
be mentioned in Plaintiff's mail log, (Dkt. No. 136), or anywhere else in the record.
20 In the reply memorandum, counsel for Defendants disclosed the initials of the third parties who signed the
sworn statements and quoted from the documents, which are, at present, not publicly filed. (Dkt. No. 160,
at 13–15).
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KeyCite Blue-Striped Flag
Appeal Filed by Dean v. Annucci, 2nd Cir., July 24, 2025
2025 WL 1811183
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
William M. DEAN, Plaintiff,
v.
Cathy Y. SHEEHAN, Deputy Commissioner and
Counsel; David Debejian, Deputy Superintendent of
Programs; Pat Collver, Acting Deputy Superintendent
of Programs; C.F. Leone, Director of Correctional
Library Services, NYS Doccs; Jeffrey McKoy, Deputy
Commissioner of Programs, NYS Doccs, Defendants.
9:22-cv-00746 (BKS/ML)
|
Signed July 1, 2025
Attorneys and Law Firms
Plaintiff pro se: William M. Dean, 11-B-0996, Marcy
Correctional Facility, P.O. Box 3600, Marcy, NY 13403
For Defendants: Letitia James, Attorney General of the State
of New York, Aimee Cowan, Assistant Attorney General, 300
South State Street, Suite 300, Syracuse, NY 13202
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief U.S. District Judge
I. INTRODUCTION
*1 Plaintiff William M. Dean filed this action pro se under
42 U.S.C. § 1983 asserting claims of mail tampering and
denial of access to courts in violation of the First Amendment
against Defendants Cathy Sheehan, Deputy Commissioner
and Counsel for the New York State Department of
Corrections and Community Supervision (“DOCCS”),
Corrine Leone, DOCCS Supervising Librarian and Law
Library Coordinator, Jeffrey McKoy, DOCCS Deputy
Commissioner for Program Services, David Debejian,
Deputy Superintendent of Programs at Marcy Correctional
Facility (“Marcy”), and Patrick Collver, the Acting Deputy
Superintendent of Programs at Marcy. (See generally Dkt.
No. 45). On June 21, 2024, Defendants filed a motion for
summary judgment under Federal Rule of Civil Procedure 56
seeking dismissal of the Amended Complaint. (Dkt. No. 103).
The briefing on this motion has taken a tortured path.
The Court granted Plaintiff six extensions to file a response to
Defendants’ motion, the last of which expired on January 31,
2025. (Dkt. Nos. 106, 109, 115, 119, 121, 130). On February
14, 2025, Plaintiff filed a 3,000-page response to Defendants’
motion for summary judgment. (See Dkt. Nos. 132, 133, 134,
135, 136, 137, 138, 140, 141, 142, 143, 144). As Plaintiff
offered no reason for the untimely filing, the Court ordered
Plaintiff to show “good cause” for failing to comply with the
Court's deadline and set a briefing schedule. (Dkt. No. 139
(citing Fed. R. Civ. P. 16(b)(4))).
On February 20, 2023, prior to the completion of briefing
on the order to show cause, United States Magistrate
Judge Miroslav Lovric, to whom Defendants’ motion for
summary judgment had been referred, issued a Report and
Recommendation that Defendants’ motion be granted and
the Amended Complaint be dismissed on the ground that
Plaintiff had failed to exhaust his administrative remedies.
(Dkt. No. 145). On the understanding that the undersigned
would determine the timeliness of Plaintiff's response,
Magistrate Judge Lovric did not consider “the contents
of Plaintiff's opposition for purposes of [the] Report and
Recommendation.” (Id. at 2 n.1).
On March 14, 2025, this Court issued an Order finding
Plaintiff had established that there was good cause for
accepting Plaintiff's response to Defendants’ motion for
summary judgment as timely, allowing Defendants the
opportunity to file a reply to Plaintiff's response, and advising
the parties that it would consider Plaintiff's response in
connection with the Report and Recommendation. (Dkt. No.
151). As Plaintiff has filed objections to the Report and
Recommendation, (Dkt. No. 149), and Defendants have filed
a reply, (Dkt. No. 160), this matter is, finally, fully briefed.
The Court rejects the Report and Recommendation as moot in
light of the additional briefing and, for the reasons that follow,
grants Defendants’ motion for summary judgment.
II. REPORT AND RECOMMENDATION
Magistrate Judge Lovric recommended that Defendants’
motion for summary judgment be granted on the ground
that Plaintiff failed to exhaust administrative remedies with
respect to his remaining First Amendment mail tampering
and access to the courts claims. (Dkt. No. 145). Finding the
“relevant time period for this action is July 15, 2021, when
Plaintiff was transferred from [Collins Correctional Facility]
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to Marcy, through November 15, 2022,” Magistrate Judge
Lovric determined that the only evidence that Plaintiff filed
a grievance was his deposition testimony that “he filed a
grievance on April 27, 2021,” while he was still at Collins,
(id. at 5), and found no evidence that “Plaintiff file[d] any
grievances at Marcy at all,” during the relevant time period,
(id. at 6). Magistrate Judge Lovric therefore recommended
that Defendants’ motion be granted “for the reasons set forth
in their memorandum of law based on Plaintiff's failure to
exhaust his administrative remedies.” (Dkt. No. 145, at 25
(citing Dkt. No. 103, Attach. 1 at 11–16)). 1
*2 When evaluating Defendant's motion for summary
judgment, Magistrate Judge Lovric was bound by the record
before him and unable to consider Plaintiff's response
submissions. Having subsequently determined that Plaintiff's
response submissions were not untimely and having invited a
reply from Defendants, the motion for summary judgment is
no longer unopposed and must be considered in light of the
entire record. Accordingly, the Court rejects the Report and
Recommendation as moot and considers Defendant's motion
for summary judgment de novo.
III. BACKGROUND 2
A. Collins Correctional Facility
On April 4, 2021, Plaintiff was transferred from Attica
Correctional Facility to Collins Correctional Facility. (Dkt.
No. 45, ¶ 1; Dkt. No. 103-2, ¶ 5; Dkt. No. 132-3, ¶ 5). At
that time, “Plaintiff had more than 18 legal actions pending
in various courts.” (Dkt. No. 103-2, ¶ 4; Dkt. No. 132-2, ¶
4). Plaintiff states that while at Attica, he had “no problems
with using the advance system for obtaining legal copies and
sending legal mail.” 3 (Dkt. No. 45, ¶¶ 172–73). Plaintiff
asserts that in order “to prevent any problems with getting
legal copies made and sending legal mail,” he sent a letter
to A. Schneider, the Deputy Superintendent of Programs
(“DSP Schneider”) shortly after his arrival asking what was
“required” to obtain postage and photocopies, and that on
April 7 and 13, 2021, he sent “advance requests” to DSP
Schneider “for $10.50” and for “$6.80 for legal copies” but
that he received no response to his inquiry or requests. (Id. ¶¶
2–4)). DSP Schneider is not a defendant in this action.
*3 On April 17, 2021, Plaintiff sent a letter to
Defendant Sheehan, DOCCS Deputy Acting Commissioner
and Counsel, about difficulties obtaining legal copies:
I have been at Collins Correctional Facility for the past
two weeks and have tried to get legal copies to notify
several agencies, courts and government officials that I
have moved, but have been denied access to copies.
The story and procedure changes everytime I go to the
law library, and when I do what was told and nothing
happens. I sent several notices to Administration here at
Collins about the issue on my first day here to establish a
working relationship to meet both of our needs. To meet
their procedures and what they wish to do to resolve any
conflicts. I wrote the DSS DSP and Superintendent, with
no responses.
(Dkt. No. 133, at 3).
Plaintiff states that on April 17, 2021, DSP Schneider returned
Plaintiff's “advance requests with a notice ... denying requests
for legal copies.” (Dkt. No. 45, ¶ 6). Plaintiff asserts that on
April 27, 2021, he filed a grievance regarding “legal copies
and legal mail” with the “IGRC Office at Collins by facility
mail as required.” (Id. ¶ 7; Dkt. No. 132–3, ¶ 6; Dkt. No.
103-5, at 80). Plaintiff further asserts that he also sent a notice
that day to DSP Schneider “about legal copies and legal mail,”
“quoted the proper [DOCCS] directives such as 4421... [and]
2788” 4 and “attached a copy of the Inmate Grievance” to the
notice. (Dkt. No. 45, ¶ 7).
On or about May 4, 2021, Plaintiff received a memorandum
from DSP Schneider:
I am in receipt of your April 27, 2021 letter. The
requested advance and the previously unpaid advances
cannot exceed $20.00. Exceeding that amount can only
be approved if you can show that the legal mail must
be sent prior to your receipt of the following week's
free postage allowance due to a court rule, statute of
limitations or other legal deadline.
You have failed to satisfy this requirement and your
outstanding balance exceeds the $20.00 limit. Therefore,
your request is denied.
(Dkt. No. 133, at 6). DSP Schneider's memorandum did not
reference any grievance.
On or about May 6, 2021, Plaintiff received a letter from
Defendant DOCCS Supervising Librarian Leone in response
to Plaintiff's April 17, 2021 letter to Sheehan.” (Id. at
10). Leone advised Plaintiff to “refer” to DSP Schneider's
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April 27, 2021 memo if he “require[d] advance funds”
for photocopies of legal matters and noted that DOCCS
“Directives 4483 & 4421, should clarify any other
concerns.” (Id.).
On or about July 15, 2021, 5 Plaintiff was transferred from
Collins to Marcy. (Dkt. No. 45, ¶ 24).
B. Marcy Correctional Facility
*4 Plaintiff asserts that on July 22, 2021, he sent notice
to the Marcy Superintendent and Deputy Superintendent
of Programs, Defendant David Debejian (“DSP Debejian”)
regarding “legal copies and legal mail as to what they needed
from Dean and what procedures they wished for Dean to
follow for getting legal copies and sending legal mail, because
he was indigent.” (Dkt. No. 45, ¶ 25). Plaintiff states that on
July 26, 2021, DSP Debejian responded, “telling him to do
as always did and follow directives.” (Id. ¶ 26; see id. ¶ 27
(averring that during orientation, DSP Debejian told Plaintiff
to “do as he has done in prior facilities” as “the rules apply no
matter what facility he is in”)).
Plaintiff asserts on September 24, 2021, the law library
supervisor returned “11 disbursement forms and advance
forms” to Plaintiff and explained that DSP Debejian was “not
mailing them because Dean is indigent and over his limit and
required additional proof from the courts.” (Id. ¶¶ 36–38). In
a memo dated that same day, DSP Debejian explained that he
was denying Plaintiff's requested advance for legal postage
because Plaintiff's “balance of unpaid previous advances for
legal mail postage exceed[ed] $20” and “the request must
include proof of a legal deadline” or “justification for the
advance.” (Dkt. No. 103-23, at 1). In his declaration DSP
Debejian, states that at that time, “Plaintiff's advancements
for postage totaled $975.10 and his advances for legal copies
totaled $908.56,” and that Plaintiff had not provided proof of
a legal deadline demonstrating that the mail must be sent prior
to the next week's free postage allowance. (Dkt. No. 103-22,
¶ 11).
In early October 2021, Plaintiff and DSP Debejian met
and discussed Plaintiff's requests for legal mail and copies.
(Dkt. No. 103-25, at 1; Dkt. No. 45, ¶ 53). According to
a memorandum dated October 8, 2021, during the meeting,
DSP Debejian told Plaintiff that in order to “satisfy” Directive
4421, Plaintiff would need a “court rule, court order, statute
of limitations, or other legal deadline” showing “that the
legal mail must be sent prior to receipt of the next week's
free postage allowance.” (Dkt. No. 103-25, at 1). On or
about October 8, 2021, and again on October 12, 2021,
DSP Debejian denied Plaintiff's requests for legal copies and
advance postage for legal mail and returned Plaintiff's legal
mail. (Id. (DSP Debejian denying request but advising that he
had “been in contact with counsel's office as per the directive”
and that “[t]hey are aware of the situation”); Dkt. No. 45, ¶¶
57–58).
In the Amended Complaint, Plaintiff states that on October
22, 2021, he “sent notice” to Sheehan “about problems
with legal copies and legal mail, and denied access to the
courts,” (Dkt. No. 45, ¶ 60), and asserts that he continued
to have difficulty obtaining postage and photocopies in
connection with his ongoing cases in November and
December 2021. (Id. ¶¶ 70–75).
In December 2021, Plaintiff received the following letter from
Sheehan:
Acting Commissioner Annucci has asked me to respond
to your letter dated October 22, 2021, to Library Services
regarding your claims of photocopies and legal mail
issues at Marcy Correctional Facility.
Concerning advances for photocopies, please be advised
that the facility considers approving each advance
request in accordance with Directive No. 2788. In many
instances a document required by the court can be
replicated longhand.
It is recommended that when requesting assistance of
any type from the facility, pertaining to a legally imposed
deadline, whether it is a court order or a statute of
limitations issue, it is well-defined and understandable.
(Dkt. No. 103-26, at 1; Dkt. No. 45, ¶ 76). Sheehan
referred Plaintiff to DSP Debejian's October 8, 2021,
memorandum concerning Plaintiff's “legal mail issues” and
to Directive 4040, regarding available “channels of problem
resolution.” (Dkt. No. 103-26, at 1).
*5 Plaintiff asserts that on January 12 and 17, 2022, he sent
requests to DSP Debejian for “132 total pages of advance
legal copies or civil filing a divorce packet with the Oneida
County Supreme Court.” (Dkt. No. 45, ¶¶ 83–84). According
to Plaintiff, DSP Debejian and “Albany Counsel” denied his
“divorce copies” on January 18, 2022. (Id. ¶ 85). Plaintiff
avers in early March 2022, he received approval for copies
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and for mailing of papers for his divorce action. (Id. ¶¶ 102–
05).
Plaintiff states that on January 21, 2022, he “sent notice to
DSP Debejian about needing advance legal copies and legal
mailing” to comply with a February 4, 2022 deadline in an
order to show cause issued by the Albany County Supreme
Court. (Dkt. No. 45, ¶ 87; Dkt. No. 103-29, at 2 (request
seeking 3,224 copies and “enough legal size envelopes to
mail as said copies as required by the Court and advances for
postage and such”)). DSP Debejian denied Plaintiff's request
in a memorandum dated February 1, 2022, explaining that
although Plaintiff had supplied “the order to show cause as
requested to prove a deadline,” a determination could not be
made “based on the order alone,” and that Plaintiff's request
was therefore denied. (Dkt. No. 103-30, at 1). DSP Debejian
advised Plaintiff, however, that if he had “documents that may
shed light of [sic] any rule, court order, statute of limitation,
or other legal deadline applicable to your circumstance,” he
could submit them for review. (Id.).
DSP Debejian retired in May 2022, at which point, Patrick
Collver assumed the role of Acting DSP. (Dkt. No. 103-22,
¶ 1; Dkt. No. 103-13, ¶ 1). On May 4, 2022, Plaintiff
“[a]dvised” DSP Collver that he “needed approval for copies
3182 pages and legal mail advances” for an Albany County
Supreme Court amended order to show cause. (Dkt. No. 45,
¶ 113). On May 10, 2022, DSP Collver denied Plaintiff's
request. (Id. ¶ 114).
On May 10, 2022, Plaintiff sent DSP Collver a request for
262 copies in connection with a complaint alleging claims
under federal civil rights statutes. (Id. ¶ 115). On May 11,
2022, Plaintiff sent a “letter/notice” to DSP Collver “about
denial of copies and mail service.” (Id. ¶ 118). That same day,
Plaintiff received the following memorandum (dated May 6)
from DSP Collver:
Upon consultation with Counsel's Office I am advising
you of the following:
1. I will authorize an advance for enough copies for the
Order to Show Cause to be served on the Superintendent
and Acting Commissioner. I will need you to specify
exactly how many pages you will need for each.
2. I will not authorize an advance for any exhibits.
You will need to seek leave from the court for copies
of exhibits as your account reflects $3,822.28 of
uncollected advances for legal copies.
(Dkt. No. 103-14, at 1).
Between May 20 and 27, 2022, Plaintiff sent DSP Collver
requests for copies in connection with his civil rights action,
legal mail advances, and for copies of 3,640 “pages.” (Dkt.
No. 45, ¶¶ 124–26; Dkt. No. 103-17, at 1).
In a June 13, 2022, letter to Erin Pfendler, the Marcy
Incarcerated Grievance Program Supervisor, Plaintiff asked
Pfendler “if she could tell him as to what happen to his
grievance filed in Collins on or/about April 27, 2021.” (Dkt.
No. 45, ¶ 139). In response, Pfendler advised Plaintiff to write
to Collins and to “write her back” if he did not receive a
response. (Id. ¶ 140). On or about June 21, 2022, Plaintiff
wrote to the Collins grievance supervisor and requested
information “as to the status of a grievance [he] filed on/or
about April 27, 2021 while being at Collins C.F. it was based
being denied the right to advance legal copies and advanced
legal mail.” (Dkt. No. 133, at 48). Plaintiff explained that
the grievance had not “been resolved prior to [his] leaving”
and he had “not heard from anyone as to what if anything
was happening to said grievance.” (Id.). Plaintiff states that
he received no response to his letter. (Dkt. No. 45, ¶ 144).
On September 1, 2022, Plaintiff sent a letter to Pfendler
asking her to look into the grievance he filed at Collins.
(Id. ¶ 167). On October 27, 2022, Plaintiff received a letter
from Defendant McKoy, DOCCS deputy commissioner of
programs:
*6 This is in response to your letter regarding your
mail.
As a result of you [sic] correspondence, Marcy
Correctional Facility (CF) was contacted and Deputy
Superintendent of Programs (DSP) Fredrickson,
indicated that all outgoing and incoming mail
is processed in accordance with Departmental
Directive #4421, “Privileged Correspondence” and
Department Directive #4422, “Incarcerated Individual
Correspondence Program”. Legal Mail advances are
processed the same day they are received. DSP
Fredrickson also indicated that you were informed
to stop writing extraneous information on your
disbursement requests and you were also asked to put the
correct dates on your requests for advance postage, so it
doesn't appear that your request are not being processed
in a timely fashion. And additional concerns regarding
this matter should be addressed to DSP Fredrickson, who
is in the best position to assist you.
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(Id. ¶ 171-g).
IV. MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
Under Rule 56(a), summary judgment may be granted only
if all the submissions taken together “show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 323, 106 S.Ct. 2548. A fact is “material” if it
“might affect the outcome of the suit under the governing
law,” and is genuinely in dispute “if the evidence is such that
a reasonable jury could return a verdict for the nonmoving
party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also
Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir.
2005) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The
movant may meet this burden by showing that the nonmoving
party has “fail[ed] to make a showing sufficient to establish
the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan
v. N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013)
(explaining that summary judgment is appropriate where
the nonmoving party fails to “ ‘come forth with evidence
sufficient to permit a reasonable juror to return a verdict in
his or her favor on’ an essential element of a claim” (quoting
In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d
Cir. 2010))).
If the moving party meets this burden, the nonmoving party
must “set forth specific facts showing that there is a genuine
issue for trial.” Anderson, 477 U.S. at 248, 250, 106 S.Ct.
2505; see also Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548;
Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When
ruling on a summary judgment motion, the district court must
construe the facts in the light most favorable to the non-
moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Dallas Aerospace,
Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still,
the nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot
rely on “mere speculation or conjecture as to the true nature
of the facts to overcome a motion for summary judgment,”
Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)
(citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d
Cir. 1985)). Furthermore, “[m]ere conclusory allegations or
denials ... cannot by themselves create a genuine issue of
material fact where none would otherwise exist.” Hicks v.
Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v.
Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
*7 Where the plaintiff proceeds pro se, the Court must
read his submissions liberally and interpret them “to raise
the strongest arguments that they suggest.” McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos
v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). However, a
pro se party's “ ‘bald assertion,’ completely unsupported by
evidence, is not sufficient to overcome a motion for summary
judgment.” Jordan v. New York, 773 F. Supp. 2d 255, 268
(N.D.N.Y. 2011) (citing Carey v. Crescenzi, 923 F.2d 18, 21
(2d Cir. 1991)); see also Wagner v. Swarts, 827 F. Supp. 2d
85, 92 (N.D.N.Y. 2011).
B. Analysis
1. Relevant Time Period
Defendants assert that the relevant time period for this case is
July 15, 2021, the date Plaintiff was transferred from Collins
to Marcy, through November 15, 2022, the date Plaintiff
filed the Amended Complaint, and thus solely concerns the
denial of legal copies and postage advances for legal mail
that Plaintiff allegedly experienced while at Marcy—but not
at Collins. (Dkt. No. 103-2, ¶¶ 1, 3). Plaintiff disputes this and
maintains the alleged violations began on or about April 4,
2021, while he was confined at Collins, continued at Marcy,
then at Mid-State Correctional Facility, and continue to the
present. (Dkt. No. 132-3, ¶¶ 1, 3).
The principal “evidence” Defendants rely on in support
of their contention that the Amended Complaint “alleges
wrongdoing associated with the conditions of his confinement
at Marcy, not Collins,” is this Court's March 2, 2023 Decision
and Order (“March 2023 Order”) reviewing the Amended
Complaint under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C.
§ 1915A(b). (Dkt. No. 103-2, ¶ 1 (citing Dkt. No. 44,
at 6)). 6 On page 6 of the March 2023 Order, the Court
provided an “Overview of the Amended Complaint,” and
introduced it as follows: “As with the original complaint,
plaintiff's amended and supplemental complaint alleges
wrongdoing associated with the conditions of his confinement
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at Marcy C.F., and reasserts Section 1983 claims against
the same ... defendants.” (Dkt. No. 44, at 6). Although this
sentence unfortunately omits Collins, read in context and
with reference to the Amended Complaint, it is evident this
omission was a simple oversight. Not only do the defendants
it refers to include Sheehan and Leone, whose involvement,
according to Plaintiff, began while he was at Collins,
but the next sentence expressly notes that the Amended
Complaint “includes each of the allegations set forth in the
original complaint,” (id. at 6–7 (emphasis added)), which
the Court previously described as containing “allegations of
wrongdoing during [Plaintiff's] incarceration at Collins ... and
Marcy,” (Dkt. No. 10, at 4). The Court therefore concludes
that the omission of Collins from the March 2023 Order was,
at most, a clerical omission and by no means a preclusive
finding regarding the relevant time period for this case.
More importantly, as even a cursory review reveals, the claims
in the Amended Complaint are centered on Plaintiff's efforts
to obtain legal copies and postage advances for legal mail at
both Collins and Marcy. (See generally Dkt. No. 45). Closer
inspection shows that it refers to Collins more than forty
times and that its “Statement of Facts” begins with Plaintiff's
transfer from Attica Correctional Facility to Collins on or
about April 4, 2021. (Id. at 25).
*8 Defendants’ reliance on Plaintiff's deposition does not
support their position as to the relevant time period, either.
In the section of the deposition that Defendants cite, defense
counsel says: “I'm going to go through each of the defendants”
and “I'm going to have you tell me what role they played
in denying your access to the courts.” (Dkt. No. 103-5, at
29–30). When defense counsel asks Plaintiff whether he
has any claims about Defendant Debejian, who is employed
at Marcy, “with respect to your time at Collins,” Plaintiff
responds: “No, he wasn't here, correct ... As a matter of
fact, there's nobody in here claims against Collins listed as
a defendant.” (Id. at 30). This is correct—the defendants in
this case include three DOCCS officials (Sheehan, Leone, and
McKoy) and two Marcy employees (Debejian and Collver),
but no Collins employees. (Dkt. No. 45). However, defense
counsel next asks Plaintiff about Defendant Sheehan and
whether Plaintiff has “any claims with respect to access to
courts for your time at Collins.” (Dkt. No. 103-5, at 31).
Plaintiff responds, in relevant part: “Its going to be in the
numbered section” of the Amended Complaint, “April 4, ‘21,
I see April 9th also. Cathy Sheehan, yes, April 17th, 2021, I
sent her notice.” (Id.). As Plaintiff's interaction with Sheehan,
according to the Amended Complaint, began while he was
at Collins, Defendants’ reliance on Plaintiff's deposition also
proves unavailing.
The Court therefore concludes that Plaintiff has shown that
the relevant time period began on or about April 4, 2021,
when he was transferred to Collins. (Dkt. No. 45, at 156);
see, e.g., PH Int'l Trading Corp. v. Nordstrom, Inc., No.
07-cv-10680, 2011 WL 13557658, at *2, 2011 U.S. Dist.
LEXIS 175934, at *4 (S.D.N.Y. Oct. 5, 2011) (looking to the
allegations in the complaint regarding the date the parties’
relationship began and the time of the alleged breach in order
to determine relevant time period for purposes of discovery);
Schiavone v. Ne. Utils. Serv. Co., No. 08-cv-429, 2009 WL
801744, at *1, 2009 U.S. Dist. LEXIS 24517, at *3–4 (D.
Conn. Mar. 25, 2009) (same). However, the Court agrees that
the time period ends on November 15, 2022, the date the
Amended Complaint was signed, (Dkt. No. 45, at 156), as
there was no supplemental pleading filed in this case.
2. Personal Involvement – Collins
Having concluded that the relevant time period in this case
began when Plaintiff was transferred to Collins, the Court
considers Defendants’ argument that there is no evidence that
Sheehan or Leone, the only two named Defendants who had
any interaction with Plaintiff while he was at Collins, were
personally involved in interfering with Plaintiff's legal mail or
in denying Plaintiff access to the Courts. (Dkt. No. 103-1, at
16–20, 28–29). Plaintiff opposes Defendants’ motion. (Dkt.
No. 132-4, at 36–42).
It is well-settled that, to establish a defendant's individual
liability in a suit brought under Section 1983, a plaintiff
must show “the defendant's personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New
Haven, 720 F.3d 133, 138 (2d Cir. 2013) (citations omitted).
A plaintiff must “allege a tangible connection between the
acts of a defendant and the injuries suffered.” Bass v.
Jackson, 790 F.2d 260, 263 (2d Cir. 1986). There is “no
special rule for supervisory liability,” and “a plaintiff must
plead and prove ‘that each Government-official defendant,
through the official's own individual actions, has violated the
Constitution.’ ” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d
Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)). The Second Circuit has
explained that “[t]he factors necessary to establish a [§ 1983]
violation will vary with the constitutional provision at issue
because the elements of different constitutional violations
vary,” and “[t]he violation must be established against
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the supervisory official directly.” Id. (second alteration in
original) (internal quotations and citations omitted).
a. Mail Tampering (Interference with Legal Mail)
“[A] prisoner's right to the free flow of incoming and outgoing
mail is protected by the First Amendment” Bacon v. Phelps,
961 F.3d 533, 543 (2d Cir. 2020) (internal citations omitted).
As the Second Circuit has explained, this right is violated
if a prison “regularly and unjustifiably” interferes with an
incarcerated individual's legal mail. Ahlers v. Rabinowitz,
684 F.3d 53, 64 (2d Cir. 2012) (quoting Davis v. Goord,
320 F.3d 346, 351 (2003)). Unconstitutional interference with
mail occurs when, for example, prison officials engage in
“an ongoing practice of unjustified censorship” or delay the
delivery of mail to a prisoner in a way that “cause[s] him
to miss court deadlines or in any way prejudice[s] his legal
actions.” Davis, 320 F.3d at 352.
b. Denial of Access to Courts
*9 The First Amendment right to petition the government,
which applies to the states through the Fourteenth
Amendment, “extends to all departments of the Government,
including the Courts.” Friedman v. Bloomberg L.P., 884
F.3d 83, 90 (2d Cir. 2017) (citation omitted). “A plaintiff's
constitutional right of access to the courts is violated
where government officials obstruct legitimate efforts to
seek judicial redress.” Id. (citation and internal quotation
marks omitted). Circuit Courts of Appeals have “recognized
two variants of right-of-access claims”: (1) “forward-looking
suits,” in which plaintiffs allege that “ ‘systemic official
action’ frustrated their ability to file a suit,” and (2)
“backward-looking” claims “covering suits that ‘cannot now
be tried (or tried with all material evidence), no matter what
official action may be in the future.’ ” Sousa v. Marquez,
702 F.3d 124, 127–28 (2d Cir. 2012) (citation omitted). A
plaintiff may have a backward-looking right-of-access claim,
for example, where the official action “caused the loss or
inadequate settlement of a meritorious case.” Id. at 128.
Moreover, the Second Circuit has not recognized the viability
of backward-looking right-of-access claims. See id. (noting
that the “viability of backward-looking right-of-access claims
is far from clear in this Circuit” and declining to decide the
issue); Kern v. Contento, No. 21-cv-1672, 2022 WL 1112767,
at *3, 2022 U.S. App. LEXIS 10073, at *7 (2d Cir. Apr. 14,
2022) (summary order) (noting that Sousa “declined to decide
whether to follow other circuits in recognizing a backward-
looking claim”).
c. Sheehan and Leone
As discussed above, the only named Defendants with any
connection to Plaintiff's difficulties obtaining copies and
advance legal postage while he was at Collins, are two
DOCCS officials: Sheehan and Leone. 7 Viewed in the light
most favorable to Plaintiff, the evidence of their involvement
at this time is: (1) Plaintiff's April 17, 2021 letter to Sheehan
reporting that he “not receiving photocopies of legal material
and legal cases from the Law Library at Collins,” (Dkt.
No. 133, at 3); and (2) Leone's May 6, 2021 response (on
Sheehan's behalf), (id. at 10). To the extent Plaintiff asserts
claims of mail tampering and denial of access to the courts
against Sheehan arising from her referral of Plaintiff's April
17, 2021, letter to Leone for response, he has failed to
present evidence from which a factfinder could find Sheehan
personally involved. See Vega v. Artus, 610 F. Supp. 2d 185,
199 (N.D.N.Y. 2009) (stating that facility superintendent's act
of “referring [the plaintiff's] letters to staff for investigation
is not sufficient to establish [his] personal involvement”);
Viera v. Sheahan, 531 F. Supp. 3d 666, 672 (W.D.N.Y. 2021)
(finding that the defendant's “receipt” of the plaintiff's “letter
and referral of the matter to a subordinate does not establish
his personal involvement in the alleged failure to process
Plaintiff's mail”). And, although an official's response to
a letter may constitute evidence of personal involvement,
see, e.g., Young v. Choinski, 15 F. Supp. 3d 172, 191 (D.
Conn. 2014) (“[W]hen a supervisory prison official receives
a particular grievance, personally reviews it, and responds
and/or takes action in response, such conduct may constitute
sufficient ‘personal involvement’ to establish individual
liability for the alleged constitutional violation.”), the Court
concludes that Leone's May 6, 2021 letter responding on
Sheehan's behalf, (Dkt. No. 133, at 10), fails to raise an issue
of fact as to any involvement by Leone in interfering with
legal mail or denying Plaintiff access to the courts.
*10 In his April 17, 2021, letter to Sheehan, Plaintiff
explained that he needed to “notify 63” different “agencies,
courts and government officials that [he has] moved” from
Attica to Collins,, but that Collins has “denied access to
copies,” that the “procedure changes” each time he goes to
the library, and that the DSP and Superintendent had not
responded to his inquiries. (Dkt. No. 133, at 3). Plaintiff
also wrote that he was having a “problem with obtaining
legal copies and cases as need to work on [his] several
legal matters.” (Id.). In her response on Sheehan's behalf,
Leone noted Plaintiff's claim of “not receiving photocopies
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of legal materials and legal cases” from the Collins law
library, referred Plaintiff to DSP Schneider's April 27, 2021
memo 8 should he require advance funds and to DOCCS
“Directives 4483 & 4421” if he had “any other concerns,”
advised Plaintiff that a letter to DOCCS “Central Office staff”
did not replace a facility's “problem resolution channels,” and
encouraged Plaintiff to use the grievance process. (Id. at 10).
Although it is undisputed that Plaintiff was litigating 18
cases during the relevant time period, Plaintiff does not
cite any specific case in connection with denial of legal
copies (the subject of his letter to Sheehan and Leone's
response) while at Collins. There is evidence that on May
25, 2021, DSP Schneider denied Plaintiff's May 17, 2021
request for an advance on postage for documents Plaintiff
sought in connection with an “Order to Show Cause” issued
by the Monroe County Supreme Court, in an Article 78
proceeding where Plaintiff was “seeking to compel” the
Monroe County Sheriff to comply with a Freedom of
Information Law request. (Dkt. No. 134-1, at 1, 73 (Dean
v. Baxter, Monroe County Sheriff, filed in Monroe County
Supreme Court, Index No. 2021-537); Dkt. No. 45, ¶¶ 12–
13). Although there is evidence that DSP Schneider also
denied other requests regarding legal copies or mail, (see
Dkt. No. 133, at 8 (May 4, 2021 memorandum regarding
“Legal Copies” and denying “requested advance”); id. at 14
(May 24, 2021 memorandum regarding “Legal Copies” and
denying request for “advances for legal mail”)), nothing in
the record ties those requests to any of the cases Plaintiff
was litigating at that time or to conduct by Leone. Thus,
no reasonable factfinder could conclude that Leone, in
responding to Plaintiff's letter regarding difficulties obtaining
legal copies, was personally involved in interfering with
Plaintiff's legal mail or obstructing Plaintiff's access to the
courts in connection with his Monroe County Article 78
proceeding or any other case. 9 Accordingly, Defendants
Sheehan and Leone are dismissed for lack of personal
involvement.
3. Exhaustion of Administrative Remedies
Defendants move for summary judgment on the ground that
Plaintiff failed to exhaust his administrative remedies prior
to filing this action, as required by the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (Dkt. No.
103-1, at 11–16). In support of their motion, Defendants
have filed declarations by Joshua Becker and Erin Pfendler,
the Incarcerated Grievance Program Supervisors (“IGPS”) at
Collins and Marcy, respectively. (Dkt. Nos. 103-11, 103-31).
Both Becker and Pfendler state that during the relevant time
period, Plaintiff filed no “grievances at all.” (Dkt. No. 103-11,
¶ 8; Dkt. No. 103-31, ¶ 8). Plaintiff responds that he “filed
numerous grievances that never went anywhere” and argues
that his reports to DOCCS and other state officials regarding
his problems with legal copies and legal mail satisfy the
PLRA's exhaustion requirement. (Dkt. No. 132-4, at 14–
16). Plaintiff also argues that there “is no working grievance
system in Collins or Marcy.” (Id. at 14–15).
*11 The PLRA prescribes limitations on an inmate's ability
to bring civil actions with respect to prison conditions.
Specifically, the PLRA provides that “[n]o action shall be
brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). This 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.” Giano v. Goord, 380
F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle,
534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002)),
abrogated on other grounds by Ross v. Blake, 578 U.S. 632,
639–42, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016).
Proper exhaustion of administrative remedies is dependent
on the rules and regulations of the prison in which the
grievance is filed; that is, an inmate of a New York State
DOCCS facility must satisfy the requirements, including
procedural and substantive requirements, set forth by DOCCS
regulations to properly exhaust administrative remedies. See
Garcia v. Heath, 74 F.4th 44, 46 (2d Cir. 2023); see also
Hayes v. Dahlke, 976 F.3d 259, 268 (2d Cir. 2020) (“[I]t
is the prison's requirements, and not the PLRA, that define
the boundaries of proper exhaustion.” (alteration in original)
(quoting Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166
L.Ed.2d 798 (2007))).
Failure to exhaust available administrative remedies is an
affirmative defense that must be raised by the defendants.
See Jones, 549 U.S. at 216, 127 S.Ct. 910. Therefore,
the defendants “bear the initial burden of establishing the
affirmative defense of non-exhaustion ‘by pointing to “legally
sufficient sources” such as statutes, regulations, or grievance
procedures’ which demonstrate that ‘a grievance process
exists and applies to the underlying dispute.’ ” Williams
v. Correction Officer Priatno, 829 F.3d 118, 126 n.6 (2d
Cir. 2016) (quoting Hubbs v. Suffolk Cnty. Sheriff's Dep't,
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788 F.3d 54, 59 (2d Cir. 2015)). “If the defendants meet
this initial burden, administrative remedies may nonetheless
be deemed unavailable if the plaintiff can demonstrate that
other factors ... rendered a nominally available procedure
unavailable as a matter of fact.” Hubbs, 788 F.3d at 59 (citing
Hemphill v. New York, 380 F.3d 680, 687–88 (2d Cir. 2004),
abrogated on other grounds by Ross, 578 U.S. at 639–42, 136
S.Ct. 1850).
Under DOCCS regulations, an inmate must generally submit
a grievance within twenty-one days of an alleged occurrence,
see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(1), but
may request an extension within forty-five days of the alleged
occurrence, see id. § 701.6(g)(1)(i)(a). An inmate's grievance
“should contain a concise, specific description of the problem
and the action requested.” Id. § 701.5(a)(2). This requirement,
the Second Circuit has held, is analogous to the requirements
of notice pleading. See Brownell v. Krom, 446 F.3d 305, 310
(2d Cir. 2006); see also Johnson v. Testman, 380 F.3d 691,
697 (2d Cir. 2004) (“The PLRA's exhaustion requirement is ...
is not dissimilar to the rules of notice pleading.”). “As in a
notice pleading system, the grievant need not lay out the facts,
articulate legal theories, or demand particular relief[;] [a]ll
the grievance need do is object intelligibly to some asserted
shortcoming.” Johnson, 380 F.3d at 697 (citing Strong v.
David, 297 F.3d 646, 650 (7th Cir. 2002)).
Subsequent procedural exhaustion of a filed grievance then
involves three steps: (1) the grievance is reviewed and
resolved by the Inmate Grievance Resolution Committee
(“IGRC”), N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b); (2)
the grievant appeals an adverse decision of the IGRC to the
superintendent of the facility at which the grievance was filed,
id. § 701.5(c); and (3) the grievant appeals an adverse decision
of the superintendent to the Central Office Review Committee
(“CORC”), id. § 701.5(d). 10 Upon the rendering of CORC's
decision, or if CORC fails to respond to a grievance within
thirty days of its appeal under the third step of the process, the
grievant has exhausted administrative remedies. See Hayes,
976 F.3d at 269–70.
*12 “Under the PLRA, a prisoner need exhaust only
‘available’ administrative remedies.” Ross, 578 U.S. at 638,
136 S.Ct. 1850. The Supreme Court in Ross v. Blake
identified, inexhaustively, see Williams, 829 F.3d at 123 n.2,
“three kinds of circumstances in which an administrative
remedy, although officially on the books, is not capable of
use to obtain relief.” Ross, 578 U.S. at 643, 136 S.Ct. 1850.
“First, an administrative remedy may be unavailable when
‘it operates as a simple dead end—with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates.’ ” Williams, 829 F.3d at 123 (quoting Ross, 578 U.S.
at 643, 136 S.Ct. 1850). “Second, ‘an administrative scheme
might be so opaque that it becomes, practically speaking,
incapable of use.’ ” Id. (quoting Ross, 578 U.S. at 643,
136 S.Ct. 1850). “Third, an administrative remedy may be
unavailable ‘when prison administrators thwart inmates from
taking advantage of a grievance process through machination,
misrepresentation, or intimidation.’ ” Id. at 124 (quoting Ross,
578 U.S. at 644, 136 S.Ct. 1850).
Here, Defendants have established that the grievance
procedures contemplated by DOCCS regulations applied to
inmates at Collins and Marcy. 11 (Dkt. No. 103-2, ¶¶ 12–14;
Dkt. No. 103-11, ¶ 5). The question before the Court, then, is
whether Plaintiff has raised a material issue of fact as to (1)
whether he exhausted these administrative remedies, and (2)
if he did not, whether the remedies were available to Plaintiff
within the meaning established by Ross and Williams.
a. Alleged Grievances at Collins
i. April 27, 2021 Grievance and Exhaustion Based on
Continuing Violation
Although there are no named defendants that could be held
responsible for the alleged constitutional violations at Collins,
the Court has considered Plaintiff's allegation of having filed
an April 27, 2021 grievance at Collins in order to assess
whether there was a grievance that could support exhaustion
based on a continuing violation.
Plaintiff asserts that he filed a grievance on April 27, 2021,
at Collins “about being denied to make legal copies and send
legal mail.” (Dkt. No. 133, at 46). At his deposition, Plaintiff
stated that he had a “copy of the grievance,” (Dkt. No.
103-5, at 81–82), but there is no copy of the grievance in the
record before the Court. According to the verified amended
complaint, Plaintiff filed this “Inmate Grievance” on April 27,
2021, “with the IGRC Office at Collins by facility mail as
required,” 12 (Dkt. No. 45, ¶ 7; see also Dkt. No. 103-5, at
80 (testifying that on April 27, 2021, he “filled the grievance
out and put it in the mailbox address to IGRC”)), but never
received any response, (Dkt. No. 45, ¶ 7). Also, according to
the verified Amended Complaint, on April 27, 2021, Plaintiff
“sent a follow up notice to DSP Schneider about legal copies
and legal mail ... and attached a copy of the Inmate Grievance
filed,” (Dkt. No. 45, ¶ 7; but see Dkt. No. 133, at 6 (DSP
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Schneider's response acknowledging his receipt of Plaintiff's
April 27 letter does not refer to the grievance that purportedly
accompanied the letter)).
Plaintiff has also adduced some evidence that he followed
up on the grievance. Plaintiff testified that he subsequently
wrote to the “superintendent at Collins, didn't get a response”
and “filed an appeal with the superintendent at Collins, didn't
get a response” and that he undertook these actions “in
’21.” 13 (Dkt. No. 103-5, at 80–81). In a letter dated June 13,
2022, more than a year after purportedly filing the grievance,
Plaintiff sent a letter to Pfendler, the Marcy grievance
supervisor, inquiring into “the status of a grievance [he] filed
on or about April 27, 2021 at Collins Correctional Facility,
about being denied to make legal copies and send legal
mail.” (Dkt. No. 133, at 46). On Pfendler's recommendation,
(id. at 47), Plaintiff sent a letter to the Collins Grievance
Supervisor, “requesting information as to the status of a
grievance [he] filed on/or about April 27, 2021 while” at
Collins and described the grievance as “based [sic] being
denied the right to advance legal copies and advanced legal
mail,” (id. at 48 (letter dated June 21, 2022)). On September
1, 2022, Plaintiff notified Pfendler that he had not received
a response from Collins and inquired how to proceed. (Dkt.
No. 133, at 49). On June 15, 2023, Plaintiff testified that
he “recently” sent a letter to the Central Office Review
Committee regarding the April 27, 2021 grievance. (Dkt. No.
103-5, at 82).
*13 Defendants dispute Plaintiff's assertion that he filed
a grievance on April 27, 2021, or at any other time while
he was at Collins. In a declaration, Becker, the Collins
Grievance Program Supervisor states that Collins has no
record of this grievance and that Plaintiff filed no grievances
“while incarcerated at Collins from April 2021 through July
2021.” (Dkt. No. 103-11, ¶ 8). In addition, none of the
memoranda issued by DSP Schneider following Plaintiff's
purported filing of the grievance (and sending a copy to DSP
Schneider) references a grievance. (Dkt. No. 133, at 6, 8, 14,
39).
In Williams v. Correction Officer Priatno, the Second Circuit
found that when a grievance is delivered by an inmate in a
Special Housing Unit to a correction officer for filing and that
grievance is never subsequently filed or answered, DOCCS
“regulations do not adequately outline the process to appeal
or otherwise exhaust administrative remedies.” 829 F.3d at
124. “On their face,” the Second Circuit held, “the regulations
only contemplate appeals of grievances that were actually
filed.” Id. And under the circumstances in that case, “the
grievance procedures that were technically available to [the
plaintiff] so opaque and confusing that they were, ‘practically
speaking, incapable of use,’ ” and therefore, “in giving his
grievance to the correction officer, [the plaintiff] exhausted
all administrative remedies that were available to him.” Id. at
126 (quoting Ross, 578 U.S. at 643, 136 S.Ct. 1850).
However, “mere contentions or speculation” regarding
mishandling of a grievance “do not create a genuine issue
of material fact when there is no evidence to support the
allegations.” Jackson v. Moore, No. 21-cv-1001, 2023 WL
4710869, at *6, 2023 U.S. Dist. LEXIS 65814, at *15
(N.D.N.Y. Apr. 14, 2023) (quoting Rodriguez v. Cross, No.
15-cv-1079, 2017 WL 2791063, at *7, 2017 U.S. Dist.
LEXIS 71337, at *19 (N.D.N.Y. May 9, 2017)), report and
recommendation adopted, 2023 WL 4711091, 2023 U.S.
Dist. LEXIS 126588 (N.D.N.Y. July 24, 2023)). Rather, a
plaintiff must provide some corroboration of a claim that
a grievance was submitted, such as evidence demonstrating
when the grievance was written, the content of the grievance,
how the plaintiff attempted to file the grievance, or that the
plaintiff followed up with prison officials on the disposition
of the grievance. See Simpson v. Price, No. 19-cv-1413, 2022
WL 336540, at *3, 2022 U.S. Dist. LEXIS 20857, at *7–8
(N.D.N.Y. Feb. 4, 2022); see also Stephanski v. Allen, No. 18-
cv-76, 2020 WL 806331, at *9, 2020 U.S. Dist. LEXIS 11028,
at *22–25 (N.D.N.Y. Jan. 22, 2020) (“Although [the plaintiff]
fails to proffer copies of the grievance(s) he attempted to
file ..., his claims are supported by evidence suggesting
that he attempted to file a grievance ... including: (1) [the
plaintiff]’s deposition testimony; (2) [the plaintiff]’s letter
to the ... Grievance Committee; (3) [the plaintiff]’s letter
to [a grievance supervisor]; (4) [a subsequent grievance];
and (5) [the plaintiff]’s Appeal Statement referring the
Superintendent's decision to CORC for review.”), report and
recommendation adopted, 2020 WL 777268, 2020 U.S. Dist.
LEXIS 26918 (N.D.N.Y. Feb. 18, 2020).
As discussed, although Plaintiff does not name any Collins
staff members as defendants in this case, he has sued the
two DOCCS officials with whom he corresponded while
at Collins: Sheehan, DOCCS Deputy Commissioner and
Counsel; and Leone, DOCCS Supervising Librarian and Law
Library Coordinator. Plaintiff could not recall who, if anyone,
he named in the April 27 grievance, but “[t]he New York
IGP regulations do not state that a prisoner's grievance must
name the responsible party.” See Espinal v. Goord, 558 F.3d
119, 126 (2d Cir. 2009). “[T]he IGP regulations offer the
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general guidance that a grievance should ‘contain a concise,
specific description of the problem,’ and the complaint form
does not instruct the inmate to name the officials allegedly
responsible for misconduct.” Id. (citing N.Y. Comp. Codes R.
& Regs., tit. 7, § 701.7(a)(1)(i)); see also White v. Williams,
No. 9:12-cv-1775, 2016 WL 4006461, at *5, 2016 U.S. Dist.
LEXIS 81972, at *13 (N.D.N.Y. June 22, 2016) (“[I]nsofar
as Plaintiff's supervisory claims relate to underlying conduct
that was the subject of a fully exhausted grievance process,
a separate grievance detailing the supervisory liability, or
specifically naming the supervisors, is not a prerequisite
to suit.”), report and recommendation adopted, 2016 WL
4005849, 2016 U.S. Dist. LEXIS 96337 (N.D.N.Y. July 25,
2016); Jones, 549 U.S. at 217, 127 S.Ct. 910 (“[N]othing
in the PLRA statute imposes a ‘name all the defendants’
requirement.”); Johnson v. Johnson, 385 F.3d 503, 522 (5th
Cir. 2004) (“[W]e are mindful that the primary purpose of
a grievance is to alert prison officials to a problem, not to
provide personal notice to a particular official that he may be
sued.”).
*14 Here, even assuming that Plaintiff satisfied his burden
with respect to an April 27 grievance about “being denied
to make legal copies and send legal mail,” Plaintiff has
not shown that this falls within the exception the Second
Circuit identified in Johnson v. Killian, pursuant to which
a prior grievance might serve to exhaust “administrative
remedies with respect to [a] continuing violation” of
constitutional rights. 680 F.3d 234, 239 (2d Cir. 2012).
In Johnson, the plaintiff filed and exhausted a grievance
“concerning limitations on congregational prayer” at a
Federal Correctional Institution in Otisville, New York.
680 F.3d at 236. The plaintiff's religious beliefs required
congregational prayer five times a day, but the Otisville
policy provided the prison chapel only once a day. Id. After
the plaintiff exhausted his grievance, Otisville “substantially
ceased enforcing the relevant policy.” Id. at 236–37. Two
years later, however, following the arrival of a new
warden, the policy “restricting congregational prayer was
reimplemented” and the plaintiff filed suit without filing a
second grievance. Id. at 237.
Concluding that the plaintiff's first grievance was sufficient
to exhaust his administrative remedies regarding his
congregational prayer policy claim, the Second Circuit
vacated the district court's dismissal of this claim. Id. In
reaching this conclusion, the Circuit recognized that “[t]he
purpose of the PLRA is to reduce the quantity and improve the
quality of prisoner suits[,] and to afford corrections officials
time and opportunity to address complaints internally before
allowing the initiation of a federal case” and found the
plaintiff's prior grievance “provided the prison administration
with notice of, and an opportunity to resolve, the same
problem that would continue intermittently” through the
two years that followed. Id. at 238 (quoting Amador v.
Andrews, 655 F.3d 89, 96 (2d Cir. 2011)). It explained
that because the issue the plaintiff “would have raised”
in a second grievance—“the inadequacy of the spaces and
times allotted for congregational prayer—was identical to
the issue he exhausted” in his prior grievance, the plaintiff's
prior grievance “was sufficient to exhaust his administrative
remedies with respect to the continuing limitations on
congregational prayer at FCI Otisville.” Id. at 239. However,
the Circuit expressly limited its holding “to cases in which a
prior grievance identifies a specific and continuing complaint
that ultimately becomes the basis for a lawsuit” and stressed
“that generalized complaints regarding the conditions of
an inmate's confinement will [not] suffice to shortcut the
administrative remedy process.” Id.
In this case, even viewed in the light most favorable to
Plaintiff, the alleged April 27 grievance about “being denied
to make legal copies and send legal mail,” (Dkt. No. 133,
at 46), suggests, at best, a generalized complaint about legal
copies and legal mail at Collins. Thus, although Plaintiff
contends that he continued to have difficulties obtaining legal
copies and advance postage for legal mail there is no basis on
which to conclude that an April 27 grievance was sufficient
to exhaust claims arising at Marcy. See Rose v. Annucci,
No. 16-cv-787, 2018 WL 2729259, at *6, 2018 U.S. Dist.
LEXIS 67017, at *15 (N.D.N.Y. Apr. 19, 2018) (finding that
while “hypothetical enforcement concerns may have been
part of plaintiff's motivation at the time that he filed” prior
grievances, he failed to show “that the issues raised” in
prior grievances asserting that religious meal form “was an
unconstitutional procedural requirement for his attendance
at the Eid-Ul-Adha festival,” challenging “the registration
deadline for Ramadan,” and asserting the “belief that he
was being penalized for refusing to sign the Religious Meal
Form,” were “identical with” the plaintiff's later claim that
he “signed the Religious Meal Form, but was penalized
when he stopped attending group Ramadan meals and refused
to take part in counseling”), report and recommendation
adopted, 2018 WL 2727874, 2018 U.S. Dist. LEXIS 94735
(N.D.N.Y. June 6, 2018). Thus, even assuming Plaintiff
exhausted administrative remedies regarding the April 27,
2021 grievance at Collins, it was not sufficient to place
DOCCS officials at Marcy 14 on notice that Plaintiff was
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being wrongfully denied legal copies and advance postage for
legal mail. Accordingly, the Court concludes that Plaintiff's
alleged April 27, 2021 grievance fails to raise a triable issue
of fact with respect to exhaustion.
ii. June 15, 2021 Grievance
*15 During his deposition, Plaintiff testified that he did not
file any grievances at Collins, other than the one he filed
on April 27, 2021. (Dkt. No. 103-5, at 84–85). However, in
the declaration Plaintiff filed in opposition to Defendants’
motion for summary judgment, Plaintiff states that he filed
“a grievance[ ] with Collins on ... June 15, 2021” that was
“related to issues with not being able to send 10 pieces of
legal mail by advance on May 25, 2021, and was refused
by Collins.” (Dkt. No. 132-3, at 4, 8–9). “The ‘sham issue
of fact’ doctrine ‘prohibits a party from defeating summary
judgment simply by submitting an affidavit that contradicts
the party's previous sworn testimony.’ ” Moll v. Telesector
Res. Grp., Inc., 760 F.3d 198, 205 (2d Cir. 2014) (emphasis
omitted) (quoting In re Fosamax Prods. Liab. Litig., 707
F.3d 189, 193 (2d Cir. 2013)). Thus, Plaintiff's contradictory
declaration in insufficient to create a triable issue of fact as to
whether he filed a second grievance while at Collins. And, in
any event, Plaintiff offers no evidence that would corroborate
his filing of this grievance. Plaintiff cites his handwritten
“Mail Log” as evidence that he filed this grievance, but it
contains no supporting factual details and only states the
following: “June 15, 2021, sent grievance and claim form
superintendent.” (Dkt. No. 136, at 24). Nor has Plaintiff
provided copies of a June 15 grievance or any evidence of
follow up. Accordingly, the Court finds Plaintiff's belated
assertion regarding the filing of a second grievance at Collins
fails to create a material issue of fact as to exhaustion.
b. Alleged Grievances at Marcy
i. September 29, 2021 Grievance
The Amended Complaint alleges that on or about September
29, 2021, Plaintiff sent a letter to Patrick Reardon, the
Superintendent of Marcy, regarding Plaintiff's “problems
with” being “denied access to the Courts” and stating
that Plaintiff was enclosing a grievance for “review and
filing.” (Dkt. No. 45, at 13, 34). In opposition to Defendants’
motion for summary judgment, Plaintiff filed a copy of a
September 30, 2021 letter he sent to Superintendent Reardon
outlining the difficulties he was having with Debejian with
respect to legal mail and legal copies and stating he has
“enclosed a grievance to be filed, please.” (Dkt. No. 142, at
40). There does not appear to be a copy of this grievance
in the record and there is no evidence Plaintiff properly
filed this grievance. In any event, sending a grievance to
the superintendent does not comply with DOCCS's inmate
grievance procedure. See Beatty v. Goord, 210 F. Supp. 2d
250, 255–56 (S.D.N.Y. 2000) (“[W]riting letters to ... the
[s]uperintendent ... [is] not sufficient to comply with the
Inmate Grievance Program”) (citation omitted).
ii. June 9, 2022 Grievances
During his June 15, 2023, deposition, Plaintiff was asked
whether, after filing the April 27, 2021, grievance, he filed
another grievance before April 19, 2023. (Dkt. No. 103-5,
at 85). Plaintiff responded “no, I wouldn't have.” (Id. at
84). Plaintiff explained that “the grievance that I had out
there was already running as far ... as I knew” and that
after the April 27, 2021 grievance, he “went over and above
the grievance process and ... started contacting everybody ...
because obviously grievances weren't working.” (Id. at
85). 15 Following the deposition, Plaintiff sent a letter (dated
the same day as the deposition) to defense counsel “to follow
up on some of the questions [he was asked] during the
deposition.” 16 (Dkt. No. 133-5, at 6). Plaintiff explained that
he reviewed his “mail log books to see if there was any
grievance I filed while at Marcy” and “came across some
entries, and one is on June 9, 2022, that I sent a Grievance
to IGRC, two of them actually. One was about Collver and
Debejian, as to advance legal mail and legal copies.... The
other one dealt with not receiving my monthly trust fund
account statements.” 17 (Id. at 6–7). Plaintiff acknowledged,
however, that he had only mentioned the grievance regarding
monthly statements in the Amended Complaint. (Id. at 7
(citing Dkt. No. 45, ¶ 136 (“June 9, 2022, Dean sent grievance
to IGRC in person about missing monthly statements.”)).
Even crediting the statements in Plaintiff's letter (which
appears to be verified, (id. at 14)), Plaintiff has not provided
the Court with a copy of any information regarding how
he filed this grievance or any documentation of any such
grievance; there is no evidence that he made follow-up
inquiries regarding a June 9, 2022 grievance, see, e.g., Gibbs
v. Gadway, No. 19-cv-281, 2019 WL 5191506, at *5, 2019
U.S. Dist. LEXIS 177879, at *2 (N.D.N.Y. Oct. 15, 2019)
(finding conclusory claim subject to dismissal where copies
of grievance appeals allegedly filed were not submitted as
evidence), report and recommendation adopted, 2020 WL
1227156 at *3, 2020 U.S. Dist. LEXIS 43719 at *7 (N.D.N.Y.
Mar. 13, 2020). Accordingly, the Court finds Plaintiff has
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failed to identify a material issue of fact with respect to his
purported June 9, 2022 grievance.
iii. Availability of Grievance System at Marcy 18
*16 Although Plaintiff has failed to raise a material issue of
fact as to whether he filed any grievance at Marcy, the Court
has, for the sake of completeness, considered his assertion
that the administrative grievance process was “unavailable”
to him at Marcy because prison officials took grievances and
threw them away or retaliated when inmates filed grievances.
(Dkt. No. 132-4, at 14–15; see also (Dkt. No. 103-5, at 83
(Plaintiff testifying that the grievances he filed at Marcy had
“a habit of disappearing” and that he did not know “if it's the
officers taking the grievances and throwing them away when
they see who they're addressed to or what's going on”)).
Defendants reply that Plaintiff's contention that there is
no working grievance system at Marcy is “untrue and
baseless.” (Dkt. No. 160, at 13). As noted above, Defendants
have filed a declaration by Pfendler, the Marcy Grievance
Supervisor, who states that “Marcy currently has a fully
functioning grievance process and had a fully functioning
grievance process from July 2021 through November 2022,”
while Plaintiff was at Marcy. (Dkt. No. 103-31, ¶ 6). Pfendler
further states that:
Incarcerated Individuals housed in
general population at Marcy are
provided incarcerated grievance
complaint forms and envelopes
upon request. Incarcerated
Individuals can file their grievance
complaints by submitting their
grievance complaints in a sealed
envelope to ensure confidentiality.
An Incarcerated Individual can
deposit a grievance complaint,
addressed to the Incarcerated
Grievance Program office, in the
intra-facility mailbox that is located
on their housing unit.
(Id. ¶ 7).
In his declaration in opposition to summary judgment,
Plaintiff states that “Marcy's grievance system” is nonexistent
“as there is problems with staff interfering with grievances
by intercepting the mail or stealing the grievance from the
grievance office or retaliating for ones that had already been
filed in the system.” (Dkt. No. 132-3, ¶ 12). In support of this
statement, Plaintiff filed seven nearly identical declarations
by individuals incarcerated at Marcy, including one by
Plaintiff himself, stating:
[A]ll I/Is in Marcy who spent
anytime here during those time
frames, and still ongoing to date,
know that if you put a grievance
in the mailbox it will never make
it to the Grievance office. The COs
will remove it from the mailbox
and destroy it and then retaliate
against the person trying send the
grievance, unless it is minor and
note related to Marcy. There is
no function grievance process per
the Constitution of otherwise at
Marcy ... since at the very minimum
July 2021.
(Dkt. No. 133-3, at 3). One of the declarations by an
incarcerated individual states that on August 15, 2022, the
declarant observed Plaintiff “being told by a Sgt. that he
would have to move out of B-2 due to an issue that alleged he
had with them about a grievance.” (Dkt. No. 133-4, at 3). In
his declaration in opposition to summary judgment, Plaintiff
identifies the Marcy Sergeant who allegedly retaliated against
him as Thomas Coomber, and states that Coomber moved
him in retaliation for “a grievance Plaintiff tried to file on/
or about August 12, 2022, by putting into the mailbox in the
B-2 Dorm.” 19 (Dkt. No. 132-3, at 8). Plaintiff states that he
had forgotten about the incident until another incarcerated
individual reminded him on October 14, 2024. (Id.).
In the Second Circuit, “[t]he test for deciding whether the
ordinary grievance procedures were available must be an
objective one: that is, would a similarly situated individual
of ordinary firmness have deemed them available.” Hemphill,
380 F.3d at 688 (quotation marks omitted). And as to
retaliation, “[i]t is well settled that a plaintiff's ‘generalized
fear’ of retaliation ‘is insufficient to excuse his failure’ to
file a grievance.” Hall v. Annucci, No. 19-cv-5521, 2022 WL
3903255, at *9, 2022 U.S. Dist. LEXIS 156492, at *24–25
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(S.D.N.Y. Aug. 30, 2022) (quoting Little v. Mun. Corp., City
of New York, No. 12-cv-5851, 2017 WL 1184326, at *12,
2017 U.S. Dist. LEXIS 46944, at *32 (S.D.N.Y. Mar. 29,
2017)), aff'd, No. 22-2031, 2023 WL 7212156, 2023 U.S.
App. LEXIS 29103 (2d Cir. Nov. 2, 2023).
*17 In this case, the allegations in the declarations filed
by Plaintiff and six individuals incarcerated at Marcy
attesting to the destruction of non-minor grievances and
retaliation “against the person trying to send the grievance”
are devoid of factual detain and constitute generalized
allegations of retaliation or interference. (Dkt. No. 133-3, at
3). There is no indication that the alleged retaliation for a
grievance Plaintiff attempted to file in August 2022 has any
connection to this action. Moreover, this cursory allegation
is unaccompanied by facts suggesting threats or intimidation,
and was insignificant insofar as Plaintiff admittedly did not
recall it two years later. (Dkt. No. 132-3, ¶ 17).
The “sworn statements” by Plaintiff and the six other
inmates that officers removed and destroyed grievances are
insufficient to create a question of fact as to the availability
of the Marcy grievance system. Neither Plaintiff nor the
inmates who filed declarations offer any factual details or
specific examples. “Courts within the Second Circuit have
continuously held that mere contentions or speculation of
grievances being misplaced by officers do not create a
genuine issue of material fact when there is no evidence to
support the allegations.” Blake v. Porlier, No. 18-cv-1008,
2019 WL 7484052, at *5, 2019 U.S. Dist. LEXIS 173760, at
*12–13 (N.D.N.Y. Oct. 4, 2019) (quotation marks omitted),
report and recommendation adopted, 2020 WL 58613, 2020
U.S. Dist. LEXIS 1207 (N.D.N.Y. Jan. 6, 2020); see also
Khudan v. Lee, No. 12-cv-8147, 2016 WL 4735364, at *6,
2016 U.S. Dist. LEXIS 122217, at *20 (S.D.N.Y. Sept. 8,
2016) (holding that under Ross, mere stand alone contentions
of mail tampering without support and particularity cannot
deem administrative remedies unavailable).
Moreover, although Plaintiff states in his declaration that
there was a “problem” with staff at Marcy “retaliating for
[grievances] that had already been filed,” (Dkt. No. 132-3, ¶
12), he does not state in his declaration or verified Amended
Complaint that he did not file grievances at Marcy because he
was afraid of retaliation. Thus, the Court finds Plaintiff has
failed to identify a material issue of fact as to the exhaustion,
or availability, of administrative remedies. Accordingly,
Defendants’ motion for summary judgment dismissing the
Amended Complaint on the ground that Plaintiff failed to
exhaust his administrative remedies is granted.
V. MOTION TO SEAL
Plaintiff moves to seal the sworn statements he submitted
in opposition to Defendants’ motion for summary judgment.
(Dkt. No. 132 (citing Dkt. Nos. 133-3, 133-4)). Plaintiff
asserts that disclosure of the contents of the statements “will
cause retaliation and/or serious physical and mental harm”
to the incarcerated individuals who provided the statements.
(Dkt. No. 132-1, ¶ 4).
“[D]ocuments submitted to a court for its consideration in a
summary judgment motion are –as a matter of law—judicial
documents to which a strong presumption of access attaches,
under both the common law and the First Amendment.”
Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 121
(2d Cir. 2006). That “strong presumption” must be balanced
against, as relevant here, “the privacy interests of ‘innocent
third parties.’ ” Wiav Sols. Inc. v. HTC Corp., No. 19-cv-4978,
2021 WL 871415, at *1, 2021 U.S. Dist. LEXIS 43997, at
*3 (S.D.N.Y. Mar. 9, 2021) (quoting S.E.C. v. TheStreet.Com,
273 F.3d 222, 232 (2d Cir. 2001)). “However, the fact that a
third party's privacy interests are at stake does not obviate the
need for the proposed redactions to be narrowly tailored to
protect those interests.” Id.
Here, Plaintiff seeks wholesale sealing of each sworn
statement, but as the statements are nearly identical and
contain no identifying information other than the individual's
“NYS DIN” number and name, there appears to be little, if
any, privacy interest implicated by the substantive contents
of the statement. However, as third parties making statements
in support of Plaintiff, the publication of the names and
DIN numbers of these incarcerated individuals may implicate
certain privacy interests, and thus redaction is warranted.
The Court therefore finds that the redaction of names and
DIN numbers from each statement is necessary to protect
each individual's privacy interest, “is essential to preserve
higher values and is narrowly tailored to serve that interest.”
Lugosch, 435 F.3d at 120 (quotation omitted). However,
Plaintiff offers no explanation for sealing his own sworn
statement, (Dkt. No. 133-3, at 16–17), a letter dated August
17, 2022, (Dkt. No. 133-4, at 4–5), a handwritten note from
a Marcy officer to Plaintiff, (Dkt. No. 133-4, at 6), or the list
of names and DIN numbers of individuals housed at Collins
and Marcy at the same time as Plaintiff, (Dkt. No. 133-3,
at 22). Thus, as Plaintiff has failed to identify any interest
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that outweighs the strong presumption of access to these
documents, his motion to seal these documents is denied.
*18 Accordingly, Plaintiff's motion to seal is granted in part
and denied in part as follows: the Clerk is directed to redact
the names and DIN numbers from Dkt. No. 133-3, at 3–15,
20–21 and Dkt. No. 133-4, at 3 and unseal the remainder of
both documents. 20
VI. CONCLUSION
For these reasons, it is hereby
ORDERED that the Report and Recommendation (Dkt. No.
145) is REJECTED as moot; and it is further
ORDERED that Defendants’ motion for summary judgment
(Dkt. No. 103) is GRANTED; and it is further
ORDERED that as the time period for exhaustion of
administrative remedies has expired, the Amended Complaint
(Dkt. No. 45) is DISMISSED; and it is further
ORDERED that Plaintiff's motion to seal (Dkt. No. 132) is
GRANTED in part and DENIED in part as follows: the
Clerk is directed to redact the names and DIN numbers from
Dkt. No. 133-3, at 3–15, 20–21 and Dkt. No. 133-4, at 3 and
unseal the remainder of both documents; and it is further
ORDERED that the Clerk is directed to enter judgment
accordingly, close this case, and serve a copy of this Order
upon the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1811183
Footnotes
1 Magistrate Judge Lovric accepted Defendants’ statement of undisputed facts without considering the verified
Amended Complaint or the context in which Defendants’ record citations arose. For example, Magistrate
Judge Lovric recommended that the Court find Defendants’ assertion that “[t]he relevant time period for
this action is July 15, 2021 (when Plaintiff was transferred to Marcy), through November 15, 2022” to be
“supported” based principally on a partial sentence in prior Order summarizing Amended Complaint. (Dkt.
No. 145, at 4–5; see Dkt. No. 44, at 6). However, a basic review of the Order (or of the Amended Complaint)
dispels any notion that this action solely concerns events at Marcy. (See supra Part IV.B.1). In any event,
as the Report and Recommendation is moot in light of the additional briefing, the Court does not further
consider it.
2 The facts are drawn from Defendants’ statement of material facts and Plaintiff's response to Defendants’
statement of material facts, (Dkt. Nos. 103-2, 132-3), to the extent the facts are supported by “particular parts
of materials in the record,” including, among other things, depositions, affidavits or declarations, or other
documents. Fed. R. Civ. P. 56(c). The Court has also considered Plaintiff's Amended Complaint, which is
verified. (Dkt. No. 45); see Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (explaining that a “verified
complaint is to be treated as an affidavit ... and [may] be considered in determining whether material issues
of fact exist[.]”) (citations omitted). The facts are construed in the light most favorable to Plaintiff as the non-
moving party. Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).
3 Under DOCCS Directive 4421, 7 N.Y.C.R.R. § 721.3(a)(3)(ii), each incarcerated individual receives “a weekly
free postage allowance equivalent to five domestic first class one ounce letters,” and “[t]o ensure that indigent
incarcerated individuals maintain their right of access to the courts,” facilities “shall ... advance request[s]”
for postage for legal mail “if the incarcerated individual has insufficient funds,” and “the balance of unpaid
previous advances ... do not exceed $20.” 7 N.Y.C.R.R. § 721.3(a)(3)(iv). However, even if an incarcerated
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individual does not qualify for an “advance” on postage because his unpaid balance exceeds $20, Directive
4421, facility staff must consult “with the department's office of counsel” before denying the request. Id.
DOCCS Directive 4483 governs “photocopying services,” and provides that if an incarcerated individual “does
not have sufficient funds for the purchase of copies ... he is entitled to obtain an advance from the facility
when he establishes that the documents sought to be copied are required by the courts and cannot be
replicated longhand.” (Dkt. No. 103-22, ¶ 7). “Advances may only be approved by the Law Library Supervisor,
in consultation with the Law Library Administrator or the Office of Counsel.” (Id.) (quotation marks omitted).
4 DOCCS Directive 2788, cited by Plaintiff, governs collection and repayment of inmate advances and
obligations and “how and when a DOCCS facility will deduct money from an account without the inmate's
consent.” Liner v. Fischer, No. 11-cv-6711, 2013 WL 1832316, at *1, 2013 U.S. Dist. LEXIS 62885 (S.D.N.Y.
May 2, 2013) (quotation marks omitted).
5 Plaintiff states in the Amended Complaint that on July 14, 2021, while at Collins, he was told “to packup
everything” as “he was being transferred to another facility” and that he was “located at Marcy C.F. as of July
16, 2021.” (Dkt. No. 45, ¶¶ 23–24). The actual date of transfer is immaterial.
6 Defendants also cite the Amended Complaint and a page from Plaintiff's deposition in support of their
argument. (Dkt. No. 103-2, ¶ 1 (citing Dkt. No. 45; Dkt. No. 103-5, at 30)).
7 McKoy is also a DOCCS official and is named as a Defendant. However, there is no evidence of his
involvement while Plaintiff was at Collins. Indeed, other than being copied on a June 5, 2022, letter Plaintiff
sent to Defendant Collver, (Dkt. No. 45, ¶ 132), the first evidence of any involvement by McKoy is a letter to
Plaintiff dated October 22, 2022, (id. ¶ 117-g; Dkt. No. 133, at 53). Accordingly, the Court does not consider
McKoy here.
8 This memo does not appear to be in the record.
9 Nor is there evidence of any harm to the Article 78 proceeding as Plaintiff subsequently obtained approval
from DSP Schneider on or about July 6, 2021, for copies and mailings in connection with “a new Order to
Show Cause from the Monroe County Supreme Court.” (Dkt. No. 45, ¶¶ 20–21, 23; see also Dkt. No. 133,
at 39 (approving advances for legal mail and copies)).
10 Complaints of “harassment,” which is not applicable here are subject to a different, expedited procedure. See
N.Y. Comp. Codes R. & Regs. tit. 7, §§ 701.5(a)(2), 701.8.
11 While Plaintiff denies this factual assertion, he does not meaningfully dispute that DOCCS grievance
procedures applied at Collins or Marcy but instead asserts there are problems with staff interference and
retaliation. (Dkt. No. 132-3, ¶¶ 11–12).
12 In his declaration, Becker the Collins Grievance Supervisor states an inmate can file a grievance “by
submitting their grievance complaints in a sealed envelope to ensure confidentiality. An Incarcerated
Individual can deposit a grievance complaint, addressed to the Incarcerated Grievance Program office, in the
intra-facility mailbox that is located on their housing unit.” (Dkt. No. 103-11, ¶ 6).
13 Plaintiff also testified that he wrote “[t]he superintendent” and told her that he wanted “to know what happened
to the letter that [he] wrote her in ’21, about the missing ... grievance that [he] never got a response from” and
that the superintendent said “can't find any record of it” and told Plaintiff to write “a note basically what the
grievance is about” and that she would “see if” she could locate it or come up with ... some type of response ...
as to what happened” but that the superintendent has not responded further. (Dkt. No. 103-5, at 83–84).
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14 There appears to be little, if any, guidance in the Second Circuit concerning whether a prior grievance that
identifies a specific and continuing complaint, could serve to exhaust administrative remedies as to claims
arising at a different correctional facility.
15 Plaintiff further testified:
Q. So after you got transferred to Marcy in July 2021, you didn't write any grievances there about what
was going on there as far as the mail tampering and the access to courts?
A. No.
(Dkt. No. 103-5, at 86).
16 The letter is dated June 15, 2023, the same day as the deposition. (Dkt. No. 133-5, at 6).
17 There does not appear to be an entry in Plaintiff's mail logs, (Dkt. No. 136), concerning a grievance on June
9, 2022.
18 To the extent Plaintiff argues there was no working grievance system at Collins, the Court notes that in his
declaration, Becker, the Grievance Supervisory at Collins, states that, in accordance with DOCCS Directive
4040, Collins “had a fully functioning grievance process from April 2021 through July 2021,” the time period
when Plaintiff was at Collins. (Dkt. No. 103-11, ¶ 5). Plaintiff has presented no evidence disputing this
statement.
19 Plaintiff does not suggest this grievance concerned legal copies or legal mail. Further, it does not appear to
be mentioned in Plaintiff's mail log, (Dkt. No. 136), or anywhere else in the record.
20 In the reply memorandum, counsel for Defendants disclosed the initials of the third parties who signed the
sworn statements and quoted from the documents, which are, at present, not publicly filed. (Dkt. No. 160,
at 13–15).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Neural Magic, Inc. v. Meta Platforms, Inc., D.Mass.,
March 6, 2023
2004 WL 3691343
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael DEVITO, Plaintiff,
v.
SMITHKLINE BEECHAM CORPORATION
d/b/a Glaxosmithkline, Defendant.
No. Civ.A. 02–CV–0745NPM.
|
Nov. 29, 2004.
Attorneys and Law Firms
De Lorenzo Law Firm, LLP, Schenectady, New York, for
Plaintiff, Scott Lieberman, of counsel.
Phillips Lytle, LLP, Buffalo, New York, for Defendant, Paul
B. Zuydhoek, of counsel.
King & Spalding, LLP, Atlanta, Georgia, for Defendant,
Chilton D. Varner, of counsel.
MEMORANDUM–DECISION AND ORDER
MCCURN, Senior J.
I. Preclusion Motion........................................................................................................ 4
A. Standard for Admissibility of Expert Evidence........................................................... 6
1. Deborah L. Sweeney.................................................................................................. 9
a. Qualified?.................................................................................................................... 9
2. Kevin W. George, M.D............................................................................................... 10
3. James T. O'Donnell.................................................................................................... 13
a. General Causation...................................................................................................... 14
i. Qualified?..................................................................................................................... 14
ii. Reliability of Testimony?............................................................................................. 17
b. Specific Causation...................................................................................................... 19
c. Warnings..................................................................................................................... 19
i. Qualified?..................................................................................................................... 20
ii. Reliability of Testimony?............................................................................................. 22
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II. Summary Judgment Motion........................................................................................ 24
Introduction
*1 “Between 1987 and 1997, the percentage of Americans
being treated for depression more than tripled nationwide[.]”
Shankar Vedantam, Report Shows Big Rise in Treatment
for Depression, WASH. POST, Jan. 9, 2002, at A01. In
December 1996, plaintiff Michael DeVito became one of
those Americans. At that time, his primary care physician
prescribed Paxil, a selective serotonin reuptake inhibitor
(“SSRI”). Mr. DeVito takes Paxil to this day, despite attempts
through the years to discontinue. DeVito claims that he cannot
discontinue taking Paxil because he has become “dependent”
upon it. Affidavit of Robert E. Glanville (Oct. 20, 2003),
exh. A thereto (Complaint) at 2, ¶ 9. More specifically,
plaintiff alleges that he has been unable to stop taking
Paxil due to what he characterizes as “withdrawal reactions”
or “dependency/withdrawal syndrome,” which according to
plaintiff “includ[es], but [is] not limited to, dizziness, nausea,
shaking, electrical-like shocks and horrible dreams.” Id. at 2,
¶¶ 7 and 6.
In this lawsuit plaintiff alleges five causes of action against
the manufacturer of Paxil, defendant Smithkline Beecham
Corporation d/b/a Glaxo Smithkline (“Glaxo”): (1) fraud; (2)
negligence; (3) strict liability; (4) breach of express warranty;
and (5) breach of implied warranty. There is a great deal
of overlap among these five causes of action. The thrust of
plaintiff's complaint is that Glaxo failed to adequately warn
of “Paxil's addictive qualities and dependency/withdrawal
characteristics[.]” Id. at 6, ¶ 19; see also id. at 3, ¶ 11b); at 7,
¶ 25; and at 8, ¶ 33. 1
Discovery is complete and Glaxo is now moving for
summary judgment pursuant to Fed.R.Civ.P. 56. Pursuant to
Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 113 S .Ct. 2786 (1993), Glaxo is also moving to
preclude the testimony of the three witnesses whom plaintiff
is proffering as experts. The court will address Glaxo's
motion to preclude first because if any or all of the proffered
testimony is inadmissible, then that could significantly impact
Glaxo's summary judgment motion in terms of the admissible
proof before the court. See Toole v. Toshin Co. Ltd ., No.
00–CV–821S, 2004 WL 2202580, at *4 (W.D.N.Y. Sept.
29, 2004) (granting defense motion to preclude testimony
of plaintiff's expert and declining to consider his report on
summary judgment motion).
I. Preclusion Motion
Each of the five causes of action which plaintiff alleges
requires him to prove causation. “Under settled New York
law, whether the action is pleaded in strict products liability,
breach of warranty or negligence, the plaintiff in a products
liability case bears the burden of establishing that a defect
in the product as a substantial factor in causing the
injury.” Prohaska v. Sofamor, S.N.C., 138 F.Supp.2d 422,
434 (W.D.N.Y.2001) (internal quotation marks and citation
omitted). Common law fraud likewise “requires a showing of
proximate causation, such that the injury is the natural and
probable consequence of the defrauder's misrepresentation
or ... the defrauder ought reasonably to have foreseen that the
injury was a probable consequence of his fraud.” Cyber Media
Group, Inc. v. Island Mortgage Network, Inc., 183 F.Supp.2d
559, 580 (E.D.N.Y.2002) (internal quotation marks and
citation omitted). To establish causation here, plaintiff DeVito
“must offer admissible testimony regarding both general
causation,” i.e. that Paxil can cause the type of symptoms of
which plaintiff complains when attempting to discontinue that
drug, “and specific causation,” i.e. that Paxil actually caused
DeVito's alleged symptoms upon discontinuation of Paxil.
See Amorgianos v. National Railroad Passenger Corporation,
303 F.3d 256, 268 (2d Cir.2002) (citation omitted) (emphasis
added); see also Blanchard v. Eli Lilly & Co., 207 F.Supp.2d
308, 314 (D . Vt.2002) (citations omitted) (“Plaintiffs ...
must prove both general and specific causation in order to
prevail on their claim, that is, that Prozac is capable of
causing and in fact did cause the deaths in this case.”). In the
context of Paxil litigation, “the general causation question is
limited to whether discontinuation from Paxil is capable of
causing dizziness, agitation, anxiety, nausea, etc.” In re Paxil
Litigation, 218 F.R.D. 242, 249 (C.D.Cal.2003). Specific
causation, on the other hand, focuses on whether a plaintiff
can “prove that [his] symptoms came from Paxil, as opposed
to, for example, the relapse of the underlying illness or the
consumption or discontinuation of other drugs.” Id.
*2 To establish causation, plaintiff DeVito seeks to offer
the testimony of three “expert” witnesses: (1) Mr. John T.
O'Donnell, a pharmacist with a Master's Degree in nutrition;
(2) Dr. Kevin W. George, a former psychiatrist of plaintiff's;
and (3) Ms. Deborah Sweeney, plaintiff's treating nurse
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practitioner. Glaxo is seeking to “preclude ... [these] experts
from offering any opinion that: (I) Paxil causes substance
dependence, or is either addictive or habit-forming; or (ii)
that plaintiff is addicted to Paxil or has developed substance
dependence as a result of taking it.” Memorandum of Law in
Support of Glaxosmithkline's Motion to Preclude Plaintiff's
Experts' Testimony Pursuant to Fed.R.Evid. 702 and Daubert
(“Def. Preclude Memo.”) at 4. In preparation for trial, each
of these witnesses has been deposed and Mr. O'Donnell has
provided an “expert” report on plaintiff's behalf. Apart from
these witnesses, plaintiff proffers no other causation evidence.
To support his theory that Paxil is defective due to an
inadequate warning, plaintiff is relying solely upon the
deposition testimony and “expert” report of Mr. O'Donnell.
Glaxo argues for the preclusion of “[h]is warnings ‘opinions”
’ because O'Donnell is not qualified to testify on that issue
and even if he were, “his opinions are neither reliable nor
scientific.” Def. Preclude Memo. at 24.
A. Standard for Admissibility of Expert Evidence
There is a two-part inquiry in deciding the admissibility
of expert evidence. First, in accordance with Fed.R.Evid.
702, “[t]he court should admit specialized expert testimony
if the witness is ‘qualified as an expert by knowledge,
skill, experience, training or education’ and his testimony
‘will assist the trier of fact to understand the evidence or
to determine a fact in issue.” ’ Nora Beverages, Inc. v.
Perrier Group of America, Inc., 164 F.3d 736, 746 (2d
Cir.1998) (quoting Fed.R.Evid. 702); see also Kass v. West
Bend Company, No. 02–CV–3719, 2004 WL 2475606, at *4
(E.D.N.Y. Nov. 4, 2004) (citation omitted) (“As a threshold
matter, the court must examine [the witness'] qualifications
to testify about alternative ... designs.”) Second, “in the form
of an opinion or otherwise,” the court must insure that “(1)
the testimony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods
reliably to the facts of the case.” Fed.R.Evid. 702. In other
words, whether an expert witness' “opinion is ultimately
admissible depend on the reliability and relevance of the
proffered testimony.” Kass, 2004 WL 2475606, at *5.
In this regard, the Supreme Court has instructed the by now
oft-cited rule that a district court must act as “a gatekeeper to
exclude invalid and unreliable expert testimony.” Bonton v.
City of New York, No. 03 Civ. 2833, 2004 WL 2453603, at *2
(S.D.N.Y. Nov. 3, 2004) (citation omitted). This gatekeeping
obligation applies whether the proposed expert testimony is
based upon scientific knowledge, “technical,” or some other
“specialized” knowledge. See Kumho Tire Co. v. Carmichael,
526 U.S. 137, 141, 119 S.Ct. 1167, 1171 (1999) (citing
Fed.R.Evid. 702). As with other types of evidence, the
court must also bear in mind that under Rule 403, even
relevant evidence “may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice,
confusion of issues, or misleading the jury.” Fed.R.Evid.
403. In Daubert the Supreme Court soundly reasoned that
“[e]xpert evidence can be both powerful and quite misleading
because of the difficulty in evaluating it. Because of this risk,
the judge in weighing possible prejudice against probative
force under Rule 403 ... exercises more control over experts
than over lay witnesses.” Daubert, 509 U.S. at 595, 113 S.Ct.
at 2798 (quotation marks and citation omitted) (emphasis
added). Finally, it should be noted that “[t]he proponent
of expert evidence must establish admissibility under Rule
104(a) of the Federal Rules of Evidence by a preponderance
of the proof.” Bonton, 2004 WL 2453603, at *2 (citing
Bourjaily v. United States, 483 U.S. 171, 175–76 (1987)).
This burden is the same regardless of whether the issue is
the “qualification[s] of a person to be a witness, ..., or the
admissibility of the evidence” itself. Fed.R.Evid. 104(a). In
the present case, this requires plaintiff Devito to prove by a
preponderance of the evidence that each of the three witnesses
whom he is proposing to call as an expert qualify as such; and
that the proposed testimony of each is admissible.
*3 “In assessing expert qualifications, ‘[l]iberality and
flexibility in evaluating qualifications should be the rule; the
proposed expert should not be required to satisfy an overly
narrow test of his own qualifications.” ’ Kass, 2004 WL
2475606, at *4 (quoting Lappe v. American Honda Motor
Co., Inc., 857 F.Supp. 222, 227 (N.D.N.Y.1994) aff'd 101 F.3d
682 (2d Cir.1996)). “So long as the expert stays within the
‘reasonable confines of his subject area,’ the expert can fairly
be considered to possess the ‘specialized knowledge’ required
by Rule 702.” Id. (quoting Lappe, 857 F.Supp. at 227) (other
citation omitted).
“In Daubert, the Supreme Court articulated four factors
pertinent to determining the reliability of an expert's
reasoning or methodology: (1) whether the theory or
technique relied on has been tested; (2) whether the theory or
technique has been subjected to peer review and publication;
(3) whether there is a known or potential rate of error and
the existence and maintenance of standards controlling the
technique's operation; and (4) whether the theory or method
has been generally accepted by the scientific community.”
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Id. (citing Daubert, 509 U.S. at 593–94, 113 S.Ct. at 2796–
97). “These factors do not, however, constitute a ‘definitive
checklist or test.” ’ Id. (quoting Daubert, 509 U.S. at 593,
113 S.Ct. at 2796). “Rather, they are intended to be applied
flexibly, depending on the particular circumstances of the
particular case at issue.” Id. (citing Kumho Tire, 526 U.S. at
150, 119 S.Ct. at 1175).
In Kumho, the Supreme Court recognized that “when
evaluating the admissibility of non-scientific expert
testimony, the standard under Rule 702 is a liberal and flexible
one, and the factors outlined in Daubert are merely guidelines
in aiding a court's reliability determination.” Houlihan v.
Marriott International, Inc., No. 00 Civ. 7439, 2003 WL
22271206, at *3 (S.D.N.Y. Sept. 30, 2003) (citing Kuhmo, 526
U.S. at 151, 119 S.Ct. at 1175). “For example, in some cases,
reliability concerns may focus on personal knowledge or
experience rather than strict scientific methods.” Id. (citation
omitted). Regardless of which criteria a court applies to assess
the admissibility of expert testimony, “the Supreme Court has
made clear that the district court has a ‘gatekeeping function’
under Rule 702—is charged with ‘the task of ensuring that
an expert's testimony both rests on a reliable foundation and
is relevant to the task at hand.” ’ Amorgianos, 303 F.3d at
265 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786)
(other citation omitted). Finally, it should be noted that “ ‘the
gatekeeping inquiry must be tied to the facts of a particular
case[.]” ’ Id. at 266 (quoting Kumho Tire, 526 U.S. at 150,
119 S.Ct. at 1175).
1. Deborah L. Sweeney
a. Qualified?
Glaxo's motion to preclude the testimony of Ms. Sweeney 2
requires little if any analysis. Glaxo is moving to preclude
her testimony because it does not believe she is qualified to
testify as an expert. Additionally, Glaxo contends that “her
proposed opinion lacks a reliable scientific foundation.” Def.
Preclude Memo. at 26. Plaintiff did not bother to respond
to this aspect of Glaxo's motion. This lack of response
amounts to a concession by plaintiff that the court should
exclude Ms. Sweeney's testimony. Cf. Green v. Doukas, No.
97 CIV.8288CMGAY, 2001 WL 767069, at *8 (S.D.N.Y.
June 22, 2001) (granting motion to preclude expert testimony
because “plaintiff's failure to oppose the motion suggests ... it
has merit[ ]”). Accordingly, the court grants Glaxo's motion
to the extent it is seeking preclusion of Ms. Sweeney's
testimony. See Amaker v. Coombe, No. 96 Civ. 1622, 2003
WL 21222534, at *6 (S.D .N.Y. May 27, 2003) (granting
motion to preclude where plaintiff defaulted); see also
Martinez v. Sanders, No. 02 Civ.5624, 2004 WL 1234041, at
*3 (S.D.N.Y. June 3, 2004) (because plaintiff did not respond
to motion, court granted same on “default” theory) (and cases
cited therein).
2. Kevin W. George, M.D.
*4 Glaxo also seeks to preclude the testimony of Dr. Kevin
George. Dr. George is a psychiatrist who saw Mr. DeVito in
consultation twice—once on November 2, 2001 and again on
December 13, 2001. Glanville Aff., exh. G thereto at 51 and
76.
Glaxo is not challenging Dr. George's qualifications, but
rather the nature of his testimony. Glaxo is seeking to exclude
Dr. George's testimony because he “has expressly disavowed
all of the opinions that plaintiff ascribed to him in plaintiff's
expert disclosure.” Def. Preclude Memo. at 25. Further, even
if Dr. George had not disavowed those opinions, Glaxo argues
that his “proposed testimony [is] inadmissible because it lacks
any reliable scientific foundation.” Id.
Plaintiff's response focuses almost exclusively on Dr.
George's qualifications, which are not in dispute. As to the
opinions which plaintiff attributes to Dr. George, the sum
total of plaintiff's response is that any alleged “shortcomings”
in that testimony go to weight and credibility, and not
to admissibility. Memorandum of Law in Opposition to
Defendant's Motion to Preclude Plaintiff's Experts (“Pl. Opp'n
Preclude”) at 5. The court disagrees. As will be seen, Dr.
George's purported opinion testimony does not have simply
a few “shortcomings.” It has glaring holes in terms of
reliability, not the least of which is Dr. George's unequivocal
deposition testimony disavowing that he made the opinions
which plaintiff claims he did.
In his expert disclosure plaintiff specifically identifies Dr.
George as an “expert” whom he intends to call at the time
of trial. Glanville Aff., exh. E thereto at 1. According to
plaintiff's expert disclosure, Dr. George will testify as follows:
that in his opinion, within a degree of
reasonable medical certainty, ... [1] the
plaintiff is experiencing withdrawal
reactions from the drug Paxil and
that each time the plaintiff attempts
to ‘wean’ himself off of the drug or
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to lower the dosage of the drug, the
plaintiff experiences said withdrawal;
2) ... the plaintiff's withdrawal signs
and symptoms are a result of the
plaintiff ingesting Paxil; and 3) ... the
plaintiff has sustained injury in that
he has been unable to discontinue the
use of Paxil and has been caused to
suffer the signs and symptoms of the
withdrawal syndrome associated with
the use and attempted discontinuance
of Paxil.
Glanville Aff., exh E thereto. Dr. George is confining his
opinions to how Paxil allegedly effected plaintiff DeVito—not
whether Paxil is capable generally of causing the symptoms
of which DeVito complains. Therefore, although the plaintiff
did not specify the purpose for which he is offering Dr.
George's testimony, presumably it is being offered on the
issue of specific causation.
As noted earlier, ordinarily once a court finds a witness
qualified as an expert, the next issue is the admissibility of
that witness' opinion testimony. Here, however, it appears that
each of the opinions which plaintiff attributes to Dr. George
have been expressly disavowed in his deposition. Dr. George
was asked point blank whether he had formed any of the
three opinions quoted above, and whether he was prepared
to testify to same. Each time he answered no. See Glanville
Aff., exh. G thereto at 88–91. Obviously, if Dr. George has
not formed the opinions which plaintiff is ascribing to him,
necessarily he has no foundation, scientific or otherwise, for
same. Accordingly, the court excludes the opinion testimony
outlined above which plaintiff is attributing to Dr. George.
*5 Even if Dr. George had not expressly disavowed the
opinions set forth above, the court still must exclude his
testimony. The crux of each of these opinions is that plaintiff
DeVito has “withdrawal reactions,” or “withdrawal signs and
symptoms” caused when he attempts to discontinue or taper
below a certain dosage of Paxil. Glanville Aff., exh. E thereto.
Dr. George's deposition testimony did not so state such. To be
sure, Dr. George did testify that he used “Paxil withdrawal”
as a “label to capture what [DeVito] was describing that he
had been experiencing.” Id., exh. G thereto at 59 (emphasis
added). When later in his deposition Dr. George was pressed
as to whether or not he diagnosed plaintiff “as suffering from
Paxil withdrawal [,]” he reiterated that he “applied that label
to describe the symptoms that [DeVito] reported in relation to
tapering Paxil.” Id. at 102 (emphasis added).
There is an obvious difference between labeling a symptom
which a patient describes and actually diagnosing that person.
Significantly, Dr. George did not diagnosis plaintiff with Paxil
withdrawal. Perhaps that is because “Paxil withdrawal is
not a formal diagnosis within DMS–IV[.]” Id. at 94. (“The
DSM–IV is the Diagnostic and Statistical Manual, the fourth
revision of it, that psychiatrists generally base their diagnoses
on.” Id.) And, “[t]here is no criteria for diagnosing somebody
with Paxil withdrawal.” Id. at 60. For example, there are no
“objective tests or assessments,” aside from skin inspection
for signs of sweating, “that could have been done to determine
whether those reports [by DeVito] were genuine[.]” Id. at
62. So, Dr. George simply took plaintiff's description of his
symptoms at “face value,” and made no attempt to determine
whether [DeVito's] report of those symptoms was genuine [.]”
Id. at 62 and 79.
In light of the foregoing, even if Dr. George were inclined
to testify that Paxil specifically caused the symptoms which
plaintiff claims it did, there is no foundation for this testimony.
What is particularly revealing in this regard is Dr. George's
candor when asked: “Have you ever made any determination
as to why Mr. DeVito's tapering off of Paxil may be taking
longer than some of your other patients?” ' Id. at 100. Dr.
George replied, “I had no scientific way, ..., of explaining
why he was having such difficulty tapering off Paxil.” Id.
(emphasis added).
Further, plaintiff DeVito saw Dr. George in the latter's
capacity as a treating psychiatrist. Thus, as is plain from Dr.
George's deposition, he was concerned primarily with the
symptoms of which plaintiff complained, not determining the
underlying cause. See Munafo v. Metropolitan Transportation
Authority, Nos. 98 CV–4572, 00–CV–0134, 2003 WL
21799913, at *19 (E.D.N.Y. Jan. 22, 2003). Had Dr. George
been focusing on the underlying cause, undoubtedly he would
have performed a differential diagnosis, which “typically
includes a physical examination, clinical tests, and a thorough
case history.” Zwillinger v. Garfield Slope Housing Corp .,
No. CV 94–4009, 1998 WL 623589, at *19 (E.D.N.Y.
Aug. 17, 1998) (citations omitted). But, Dr. George did not.
Without a differential diagnosis, specific causation cannot be
established. See id. (“To establish specific causation, other
possible causes for the symptoms experienced by plaintiff
should be excluded by performing a ‘differential diagnosis.”
’)
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3. James T. O'Donnell
*6 Glaxo argues that the court must preclude O'Donnell's
testimony for two reasons. First, he is not qualified as an
expert as to the issues upon which he is being asked to opine—
general and specific causation and the adequacy of the Paxil
warnings. Second, even if he does qualify as an expert, Glaxo
contends that the court should preclude his opinions because
they lack the requisite scientific foundation and are otherwise
unreliable. Plaintiff responds that O'Donnell's “experience
and credentials are impressive [,]” whether the issue is his
qualifications to testify as an expert on causation or as an
expert on warnings. Pl. Preclude Memo. at 4. Plaintiff further
responds that regardless of whether O'Donnell is opining
on causation or warnings, any alleged “shortcomings” in
that testimony go to “weight and credibility, and not [to] ...
admissibility.” Id. at 5 (citation omitted).
Plaintiff DeVito is offering O'Donnell's testimony on three
separate issues, which require different areas of expertise. The
court will examine O'Donnell's qualifications as to each.
a. General Causation
Glaxo offers a host of reasons as to why O'Donnell “is not
an ‘expert’ on scientific issues concerning general or specific
causation” with respect to SSRIs or Paxil. Def. Preclude
Memo. at 7 (emphasis added). All of these reasons have merit.
i. Qualified?
This is not the first court to be confronted with the issue
of whether Mr. O'Donnell is qualified to give an expert
opinion here. In Newton v. Roche Laboratories, Inc., 243
F.Supp.2d 672 (W.D.Tex.2002), the court found that he was
not qualified to render an opinion on general causation. Id.
at 679. There, the parents of a 16 year old girl claimed
that Accutane, a prescription acne medication manufactured
by the defendant, caused or precipitated the onset of their
daughter's schizophrenia. In much the same way plaintiff
DeVito is offering O'Donnell's testimony here, the plaintiffs
in Newton offered O'Donnell as an expert “to testify regarding
general causation, i.e., that Accutane is pharmacologically
capable of causing schizophrenia.” Id. at 677. After outlining
a number of ways in which O'Donnell's qualifications were
lacking, the court expressly found that he was not qualified to
render such an opinion.
To support that conclusion, the Newton court relied upon
O'Donnell's deposition testimony, which is substantially
similar to his deposition testimony in this case. For example,
O'Donnell testified in Newton, as he did here, that “he
has never earned an M.D., a Ph.D., or any degree in
pharmacology.” Id. at 677; see also O'Donnell Dep'n at 24–
25 and 53. Yet, he “still holds himself out as a ‘doctor’
and a pharmacologist[.]” Id. As in Newton, “O'Donnell ...
[continues to] grant[ ] himself the title of ‘doctor’ in reliance
upon his Pharm.D degree, [which] he conceded in his
deposition that in the majority of pharmacy schools, th[at] ...
degree is ‘an entry-level degree’ that pharmacists must have
to ... even practice pharmacy.” Id. at 677 n. 2 (citation
omitted); see also O'Donnell Dep'n at 24–25. In contrast,
to obtain a degree in pharmacology usually three or four
years of graduate school is required. O'Donnell Dep'n at 25–
26. O'Donnell did get a graduate degree, but it was not in
pharmacology. O'Donnell's formal education consists of a
four year degree in pharmacy and a Master's Degree in clinical
nutrition. Id. at 27.
*7 In addition to questioning O'Donnell's background
generally, the Newton court pointed out his “lack [of]
appropriate pharmacological training relevant to the issues”
therein, i.e. “Accutane, Vitamin A, schizophrenia, or
psychosis[.]” Id. at 678. The same may be said here. There is
no factual basis upon which this court can find that O'Donnell
is an expert regarding SSRIs generally, not to mention Paxil or
discontinuation of Paxil. Indeed, as his deposition testimony
shows, O'Donnell's asserted expertise on these subjects is
non-existent. See id. at 21, 24; 38–40; and 45.
Given that SSRIs are a fairly recently developed class
of drugs, understandably they were not the subject of
O'Donnell's course work as an undergraduate, or when getting
his Master's Degree in nutrition. Id. at 21 and 24. Since
that time, O'Donnell has done nothing to advance his own
knowledge as to SSRIs generally or Paxil in particular.
When directly asked if he had “done any clinical research
whatsoever relating to antidepressants,” O'Donnell replied
that he had not. Id. at 38. He responded the same way when
asked if he had “done any scientific research concerning
Paxil or SSRI antidepressants[.]” Id. at 39. Moreover,
O'Donnell conceded that the first time he “review[ed] ...
scientific literature in connection with Paxil discontinuation
symptoms[ ]” was for this case. Id. at 40–41.
This is the sort of “litigation-drive expertise” which courts
have eschewed. To illustrate, the court in Mancuso, 967
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F.Supp. at 1443, reasoned that it could not “help but conclude
that [plaintiff's expert] was not in fact an expert ... when he
was hired by the plaintiffs, but that he subsequently attempted,
with dubious success, to qualify himself as such be selective
review of the relevant literature.” This appears to be an apt
description of what Mr. O'Donnell attempted to do in the
present case.
The court stresses that it is no single factor which is
dispositive of whether O'Donnell qualifies as an expert on the
issue of general causation. Rather, it is the cumulative effect
of the foregoing which convinces the court that O'Donnell
lacks the lack of relevant “knowledge, skill, experience,
training or education” to testify as an expert on the issue of
general causation vis-a-vis the discontinuation of Paxil. As
he admitted, O'Donnell is not a pharmacologist. Therefore,
he cannot, as he does in his “expert report,” opine to
a “reasonable pharmacological certainty,” that plaintiff is
experiencing “withdrawal toxicity reactions from Paxil[.]”
O'Donnell Rep. Clearly, allowing a pharmacist/nutritionist
such as O'Donnell to testify in that way would run afoul of the
rule that an expert must stay “within the reasonable confines
of his subject area[.]” ' Kass, 2004 WL 2475606, at *2475606,
at *4 (internal quotation marks and citations omitted). Simply
put, the court agrees with the court's comment in Newton
that “[p]laintiff's attempts to present O'Donnell as an expert
pharmacologist [is] ... an extremely bold stretch.” Newton,
243 F.Supp.2d at 279. 3
ii. Reliability of Testimony?
*8 O'Donnell's lack of education, training and background
as to Paxil becomes even more apparent when viewed in terms
of the opinions which he has rendered in this case. That is so
because a “court's evaluation of qualifications is not always
entirely distinct from the court's evaluation of reliability.”
Pearson v. Young, No. CIV–99–1559–F, 2002 WL 32026157,
at *3 (W.D.Okla. Jan. 17, 2002).
O'Donnell's opinion as to causation is that “DeVito is
experiencing withdrawal toxicity reactions from Paxil, and
indeed, each time he attempts to wean or lower the dosage,
he again experiences such infinity [sic].” Glanville Aff., exh.
E thereto. O'Donnell states that when plaintiff's dosage of
Paxil is lowered, he suffers from the following “withdrawal
signs and symptoms [:] anxiety, jitery [sic], agitation, nausea,
drowsiness, generalized discomfort and vertigo[.]” O'Donnell
Report at 2. “For this opinion to be admissible, O'Donnell
must have a reliable scientific basis to support not only
(1) a casual relationship between” Paxil and the enumerated
side-effects, “but also (2) his assertion that [Paxil] will
produce these side-effects.” See Newton, 243 F.Supp.2d at
679 (emphasis added). O'Donnell's report and deposition
testimony are void of a scientific basis to support either of
those assertions.
In terms of publications, O'Donnell testified that he was the
editor of a non-peer reviewed book entitled “Drug Injury
Liability, Analysis and Prevention.” Id. at 98–99. That book
contained a mere six sentences on SSRIs, including the two
sentences on Paxil. Id. at 99. Given that minimal reference
to SSRIs, it is not surprising that that book contains nothing
about discontinuation symptoms. See id. It further appears
that he has performed absolutely no research regarding Paxil,
much less its discontinuation. Id. at 38–39. What is more,
O'Donnell has done no scientific or clinical research of any
kind for almost two decades. The last time he did any such
research was in he “early '80s as part of a pharmacology lab
sabbatical,” where he was looking at vitamins and critical care
drugs used in Intensive Care Units. Id. at 36.
In light of the foregoing, to allow plaintiff to rely upon Mr.
O'Donnell's opinions as to general causation clearly would
violate Daubert' s “requirement that the expert testify to
scientific knowledge—conclusions support by good grounds
for each step in the analysis[.]” ' Amorgianos, 303 F.3d at 267
(citations and quotation marks omitted).
b. Specific Causation
It stands to reason that if Mr. O'Donnell lacks (which he
does) the qualifications to testify as to general causation, he
lacks the qualifications to testify as to specific causation.
His opinion as to specific causation suffers from the
same infirmities, detailed above, as to general causation.
Accordingly, the court finds that Mr. O'Donnell does not have
the requisite qualifications to testify as to specific causation;
and even if he did, his opinions in that regard are unreliable.
c. Warnings
*9 Glaxo contends that because O'Donnell “lacks any
pertinent qualifications[,]” Def. Memo. at 14, he should not
be allowed to testify that in his opinion the “lack of ...
a precaution and warning about withdrawal risk and the
need to taper [when discontinuing Paxil] renders the product
defective due to an inadequate warning. See O'Donnell Report
at 3. Plaintiff did not directly respond to this argument.
Included in the list of highlighted credentials in plaintiff's
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memorandum of law is that Mr. O'Donnell “is currently
involved in the teaching of New Drug Development and
Regulations [.]” Pl. Opp'n Memo. at 2. However, plaintiff
does not explain, or cite to any portion of O'Donnell's
deposition explaining, how or why this position qualifies him
to testify as an expert on warnings.
As with the other issues upon which plaintiff intends to offer
O'Donnell's testimony, plaintiff baldly retorts that O'Donnell's
“extensive experience qualifies as specialized knowledge
gained through experience, training, or education[.]” Pl.
Memo. at 4 (internal quotation marks and citations omitted).
And, once again, he relies upon the argument that
Glaxo's reasons to preclude O'Donnell's testimony regarding
warnings should be saved for trial, i.e. they should be used to
attack O'Donnell's credibility and the weight which the jury
might give to his opinions regarding Paxil warnings.
i. Qualified?
O'Donnell “claim[s] to be an expert in drug labeling[.]”
O'Donnell Dep'n at 90. Presumably he is including drug
warnings within the province of this supposed expertise. In
any event, to qualify as an expert it is not enough for a
witness to simply declare that he is one. Federal Rule of
Evidence 702 requires more. As plaintiff acknowledged, a
witness must satisfy the court that he has a certain amount
of “knowledge, skill, experience, training or education [ ]”
in the relevant field before he can be deemed an expert. See
Nora Beverages, 164 F.3d at 746 (internal quotation marks
and citation omitted). Close examination of O'Donnell's
deposition testimony reveals that he is lacking in each of
those areas when it comes to the subject of the adequacy of
prescription drug warnings.
O'Donnell's claimed expertise admittedly is “through
experience,” not through formal education. O'Donnell
Deposition at 90–92. His experience consists primarily of
having attended continuing education (“CE”) programs,
where drug labeling was a topic. Id. Those CE programs
were to satisfy his pharmaceutical and nutritionist CE
requirements, however; and he was unable to elaborate on the
substance of same. See id. Furthermore, O'Donnell has not
consulted with any pharmaceutical company “concerning the
labeling for any antidepressant[.]” Id. at 96. O'Donnell agrees
“that the FDA [Food and Drug Administration] is the highest
authority on how drugs are labeled in this country[,]” but he
has also never consulted with them “concerning the labeling
for any antidepressant. Id. For that matter, O'Donnell has not
worked for or consulted with the FDA in any capacity. See
Glanville Aff. at 9, ¶ 39. Thus, O'Donnell's experience in this
area is extremely limited.
*10 Moreover, O'Donnell made two especially damaging
concessions which seriously undermine the suggestion that he
is an expert as to the adequacy of prescription drug warnings.
O'Donnell readily agreed “that in assessing the adequacy of a
label for a prescription drug, the expert rendering the opinion
generally should be familiar with the clinical trials data on
the drug as it relates to the side effect concerning which he
is opining[.]” Id. at 192. Yet, O'Donnell frankly admitted that
he had not reviewed any of the Paxil clinical trials data. See
id. Similarly, O'Donnell conceded that “generally to reach a
conclusion regarding the adequacy of a label for a prescription
drug, the expert rendering the opinion should be familiar
with at least a majority of the available medical literature
on the drug as it relates to the side effect on which he is
opining[.]” Id. at 193. Despite the foregoing, O'Donnell went
on to testify that he has “not read the specific literature [ ]”
relating to discontinuation symptoms of Paxil. Id. 193 and
45. In fact, he has only read “abstracts” of articles. Id. at
46–47. Finally, Mr. O'Donnell has not lectured on, or written
anything (peer reviewed or not) about, “Paxil discontinuation
symptoms apart from [his] export [sic] report in this case[.]”
Id. at 45. As the foregoing clearly shows, Mr. O'Donnell does
not “employ[ ] in the courtroom the same level of intellectual
rigor that characterizes the practice of an expert in the relevant
field[,]” which here is the adequacy of prescription drug
warnings and Paxil in particular. See Kumho Tire, 526 U .S.
at 152, 119 S.Ct. at 1176.
Mr. O'Donnell may qualify as an expert in the fields of
pharmacy or nutrition, but that is not the purpose for which
his testimony is being offered here. Instead, his testimony is
being offered on the adequacy of Paxil warnings. O'Donnell
has never been drafter or been asked to draft a warning for any
antidepressant, let alone for Paxil. Likewise, he has not done
any research or written any publications on prescription drug
warnings. Thus, whether judged in terms of his education or
experience, does not rise to the level of “expertise ... that
the jury would expect from a bona fide warnings expert.”
See Robertson v. Norton, 148 F.3d 905, 907 (8 th Cir.1998)
(internal quotation marks omitted).
In sum, O'Donnell is being called upon to testify regarding
the adequacy of the Paxil warning, an issue which clearly
is outside the “reasonable confine [s] of his subject area[s,]”
which are pharmacy and nutrition. See Kass, 2004 WL
2475606, at *4 (internal quotation marks and citations
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omitted). Therefore, because O'Donnell does not “possess
the specialized knowledge required by Rule 702[,]” the court
finds that he is not qualified as an expert on the issue of the
adequacy of the Paxil warning. See id.
ii. Reliability of Testimony?
*11 Given the nature of the claims which plaintiff is
alleging in this case, plainly there is a close relationship
between excluding the causation opinion and excluding the
warning opinions which are being offered by O'Donnell.
Miller v. Pfizer, Inc., 196 F.Supp.2d 1062 (D.Kan.2002),
aff'd on other grounds, 356 F.3d 1326 (10 th Cir.2004),
cert. denied, 125 S.Ct. 40 (Oct. 4, 2004), provides a good
example of how a decision to preclude causation “expert”
testimony impacts upon a decision to also preclude warning
testimony. The plaintiff parents in Miller were suing the
manufacturer of Zoloft, another SSRI, alleging that it caused
their son to commit suicide. Similar to the present case,
the plaintiffs in Miller asserted state law claims for strict
liability for marketing defects and misrepresentations, and
negligence for failure to test and warn. The court held that
an “eminent” psychiatrist and neuropsychopharmocologist's
proposed testimony regarding general causation, i.e. that
Zoloft causes suicide, did not satisfy the Daubert criteria
for admissibility because, in short, “he lack[ed] sufficient
expertise on the issue of suicide.” Id. at 1087 and 1088.
The Miller court, as is this court, was then confronted with
the issue of whether that same doctor could qualify as an
expert who would opine “that Zoloft labels do not adequately
warn against the danger of SSRI-induced suicide.” Id. at
1088. After finding that the doctor was not an expert on
that issue, the court soundly reasoned, “[i]f the jury will
hear no evidence that [Paxil] causes [withdrawal symptoms/
addictive], it cannot possibly conclude that [Paxil] labels
do not adequately warn against the danger that [Paxil]
causes [such condition.]” Id. at 1089. That reasoning applies
with equal force here. Even if O'Donnell qualifies as a
prescription drug warning expert, because neither O'Donnell
nor Dr. George (plaintiff's only proof as to causation) qualify
to testify about causation, the former's warning testimony
“would essentially be irrelevant to any larger issues in the
case.” See id. Accordingly, there is no need to analyze
whether O'Donnell's opinions as to warnings pass muster
under Daubert.
In short, plaintiff DeVito has not sustained his burden
of proving by a preponderance of the evidence that Mr.
O'Donnell is qualified to render an opinion as to general
causation, specific causation, or the adequacy of Paxil
warnings. Even if O'Donnell could somehow be deemed to
have the requisite “specialized knowledge” to testify as to any
or all of those issues, “courts do not have to credit opinion
evidence connected to data ‘only by the ipse dixit of the
expert.” ’ Prohaska, 138 F.Supp.2d at 438 (quoting General
Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. (1997)). That is
all O'Donnell has to rely upon; simply because he offers an
opinion which he claims to be valid, plaintiff assumes it is so.
This court will not, however.
*12 For the reasons set forth above, the court grants in
its entirety Glaxo's motion to preclude the testimony of Mr.
O'Donnell; Dr. George; and Ms. Sweeney.
II. Summary Judgment Motion
The court assumes familiarity with the Supreme Court's
trilogy of cases clarifying the governing legal standards on
summary judgment motions, and sees no need to repeat those
standards herein. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317
(1986); and Matsushita Elec. Industr. Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986)
It is an understatement to say that the wholesale exclusion
of the testimony of O'Donnell, George and Sweeney
significantly impacts plaintiff DeVito's case. As discussed
at the outset causation is a necessary element of each
of the five causes of action which plaintiff is alleging
herein. Because plaintiff's only causation evidence has been
excluded, it necessarily follows that Glaxo is entitled to
summary judgment in its favor. See Kass, 2004 WL 2475606
(after granting motion to exclude testimony of plaintiff's
claimed expert regarding the feasibility of alternative designs,
court granted defense summary judgment motion because
plaintiff could not satisfy the critical element of a design
defect cause of action); and Zwillinger, 1998 WL 623589
(where plaintiff claimed that her exposure to defendants'
carpeting causes her to develop immunotoxicity syndrome,
court granted summary judgment in defendants' favor after
excluding the of doctor's testimony, which was plaintiff's only
causation evidence).
To conclude, the court hereby GRANTS the motion by
Smithkline Beecham Corporation d/b/a Glaxo Smithkline,
to preclude the testimony of James O'Donnell; Dr. Kevin
George; and Ms. Deborah Sweeney. The court further
GRANTS the motion by Smithkline Beecham Corporation
d/b/a Glaxo Smithkline for summary judgment pursuant to
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Fed.R.Civ.P. 56 dismissing all of plaintiff Michael DeVito's
claims as against it.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2004 WL 3691343
Footnotes
1 The present action, which has been referred to as a “tag-along action,” is one of a number throughout
the country wherein plaintiffs are alleging that Glaxo knew of the hazardous side effects of Paxil and
either concealed, misrepresented or failed to warn of them. See In re Paxil Products Liability Litigation,
296 F.Supp.2d 1374 (Judicial Panel on Multidistrict Litigation 2003). In mid-February 2004, this court was
advised that the Judicial Panel on Multidistrict Litigation (“the Panel) had conditionally transferred this action
to the United States District Court fo the Central District of California for coordinated or consolidated pretrial
proceedings pursuant to 28 U.S.C. § 1407.” Glaxo moved to vacate that conditional transfer as it pertained
to the present case. When plaintiff did not respond, on June 15, 2004, the Panel vacated that conditional
transfer as it relates to Mr. DeVito.
2 During her deposition Ms. Sweeney unequivocally testified, “I'm not a physician. I'm not a nurse practitioner.”
Glanville Aff ., exh H thereto at 123. She holds an associates' degree in nursing, a bachelor of science degree
in health and human services, and a nurse practitioner's degree.” Id. at 12, 17, 35–36. Thus, to refer to Ms.
Sweeney as “Doctor Sweeney, as plaintiff does throughout his expert disclosure, is not only a misstatement
but directly contradicts Sweeney's own testimony. Plaintiff's tendency to exaggerate or overstate certain
things, as will be seen, is not limited to the qualifications of his experts.
3 O'Donnell's insistence on holding himself out as a pharmacologist, see O'Donnell Dep'n at 54, ignores at
least one fundamental distinction between pharmacology and pharmacy—a distinction which is critical here.
“Pharmacology can be fairly described as the study of the effect of drugs on living organisms. Pharmacy,
on the other hand, is the profession of preparing and dispensing drugs.” Newton, 243 F.Supp.2d at 677, n.
1. It is self-evident that there is a vast difference in the education, experience and skill necessary to obtain
degrees in these two different fields.
Apparently O'Donnell recognizes this distinction because in Newton he “admitted ... that from approximately
1982 to 1985, he intentionally and falsely advertised that he possessed a doctorate in pharmacology in an
attempt to attract more interest from lawyers for his consulting expert business.” Id. at 677, n .3 (citation
omitted). He made that same admission in this deposition herein. O'Donnell Dep'n at 28–31. O'Donnell did
change this advertisement because, in his words, it was “incorrect.” Id. at 29. This court cannot overlook what
at best appears to be a serious lapse in judgment, however.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 112 of 290

Este-Green v. Astrue, Not Reported in F.Supp.2d (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 2473509
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Donna ESTE–GREEN, Plaintiff,
v.
Michael J. ASTRUE, Comm'r
of Social Security, Defendant.
No. 5:09–CV–0722 (GTS/GHL).
|
Aug. 7, 2009.
West KeySummary
1 Social Security Exhaustion of other
remedies
Representative for a social security payee
failed to exhaust her administrative remedies
before filing her claim since there was no
final decision after a hearing. The Social
Security Administration (SSA) garnished the
representative's wages after attempting to work
out a repayment plan since the representative
was overpaid on behalf of the payee. The
representative contacted the SSA to complain
about the garnishment and shortly thereafter, the
representative filed the action with the Small
Claims Court, without having a hearing or final
order from the Commissioner of Social Security.
Social Security Act, § 205(g), 42 U.S.C.A. §
405(g).
29 Cases that cite this headnote
Attorneys and Law Firms
Donna Este–Green, Hempstead, NY, pro se.
Hon. Andrew T. Baxter, United States Attorney for the
Northern District of New York, William H. Pease, Esq.,
Assistant U.S. Attorney, of Counsel, Syracuse, NY.
DECISION and ORDER
Hon. GLENN T. SUDDABY, District Judge.
*1 Currently before the Court, in this pro se action filed
by Donna Este–Green (“Plaintiff”) to recover funds allegedly
owed to her by the Social Security Administration, is a motion
by Michael J. Astrue, Commissioner of Social Security
(“Defendant”) to dismiss the action pursuant to Fed.R.Civ.P.
12(b)(1) for lack of subject matter jurisdiction due to
Plaintiff's failure to exhaust her administrative remedies
before filing suit. (Dkt. No. 3.) Plaintiff has not opposed the
motion. For the reasons set forth below, Defendant's motion
is granted, and Plaintiff's Complaint is dismissed.
I. BACKGROUND
A. Procedural History
On or around May 27, 2009, Plaintiff brought this
action in Small Claims Court, City of Ithaca, County
of Tompkins (“Small Claims Court”), naming the Social
Security Administration (“SSA”) as Defendant. (Dkt. No. 1,
Part 3.) Liberally construed, Plaintiff's Complaint alleges that
the SSA wrongfully garnished her wages in the amount of
five hundred seventy-one dollars ($571.00). (Id.) On June 24,
2009, the United States Attorney's Office for the Northern
District of New York removed this case from the Small
Claims Court, pursuant to the exclusive original jurisdiction
of the District Court under 42 U.S.C. §§ 405(g)-(h) and
1383(c)(3), “because Plaintiff's claim appeared to relate to the
payment of Social Security benefits to her as representative
payee for the account of Albertina King.” (Dkt. No. 3.)
B. Relevant Facts
In 1999, Plaintiff had been acting as representative payee
for Albertina King, who had been receiving Social Security
benefits under Title II of the Act. (Dkt. No. 3.) In October
1999, the SSA issued an overpayment to Plaintiff on Albertina
King's account. (Id.) In March 2001, the SSA and Plaintiff
arranged a repayment plan pursuant to which Plaintiff agreed
to repay the amount due the SSA in fifty-dollar installments
beginning on April 15, 2001. (Id.) In October 2007, the
SSA sent a letter to Plaintiff, in which the SSA stated the
following: (1) Plaintiff had been overpaid as representative
payee; (2) Plaintiff had the right to question the decision
about her overpayment and to ask that the SSA not recover
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the overpayment; (3) the SSA's past attempts to recover this
overpayment had not been successful; (4) there are actions
that the SSA can take to recover the money, including wage
garnishment; (5) Plaintiff could prevent the wage garnishment
by taking certain steps within sixty days of the letter, including
repaying the debt, agreeing to a definite repayment plan and
repaying the debt according to that plan, asking the SSA to
review the finding that she owed the amount stated and that
the SSA had the right to collect it, asking the SSA to waive
collection of the overpayment, or asking the SSA to review
its plan to collect up to fifteen percent of her disposable pay.
(Id.) In addition, the letter informed Plaintiff of how she could
repay the SSA. (Id.)
*2 Plaintiff returned this letter to the SSA, stating that the
overpayment was not her fault. (Id.) Plaintiff indicated that
she could not afford the amount owed, and that the money
that she received was used for the payee's burial. (Id.) In
March, 2008, Plaintiff spoke with a supervisor of the SSA
by telephone and negotiated a repayment plan agreement for
installments of twenty dollars ($20). (Id.) On April 29, 2008,
the SSA sent Plaintiff a billing statement indicating her debt of
five hundred seventy-one dollars ($571), and that a minimum
payment of twenty dollars ($20) must reach the SSA by May
15, 2008. (Id.) On May 6, 2008, documentation issued in
connection with the administrative garnishment of Plaintiff's
wages was returned to the SSA from Plaintiff's employer,
stating that Plaintiff was no longer employed there. (Id.)
On April 17, 2009, the SSA issued an order to Plaintiff's
employer to garnish her wages. (Id.) Plaintiff's employer
completed this order and returned it to the SSA. (Id.) On May
21, 2009, Plaintiff contacted the SSA to complain about the
garnishment. (Id.) Shortly thereafter, Plaintiff filed this action
with the Small Claims Court, and the Complaint was mailed
to the SSA on May 27, 2009.
II. APPLICABLE LEGAL STANDARDS
A. Standard Governing Motions to Dismiss for Lack
of Subject Matter Jurisdiction
“A case is properly dismissed for lack of subject matter
jurisdiction under Rule 12(b)(1) when the district court
lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000)
(citing Fed.R.Civ.P. 12[b][1] ). With regard to a challenge
to a determination by the Social Security Administration,
“[a]ny individual may seek judicial review under 42 U.S.C.
§ 405(g) ‘after any final decision of the Commissioner of
Social Security made after a hearing to which he was a
party, irrespective of the amount in controversy.” Diagnostic
Cardioline Monitoring of New York, Inc. v. Leavitt, 171 F.
App'x. 374, 375 (2d Cir. March 17, 2006) (citing 42 U.S.C.
§ 405[g] ). “This final-decision-after-a-hearing requirement
is critical to the federal court's grant of subject matter
jurisdiction over these claims.” Leavitt, 171 F. App'x. at 375
(citing Weinberger v. Salfi, 422 U.S. 749, 763–64 [1975] ).
“In the absence of a final decision after a hearing, the federal
court lacks subject matter jurisdiction to entertain the claim,
and it must be dismissed.” Id. (citation omitted).
B. Standard Governing Unopposed Motions
“Where a properly filed motion is unopposed and the Court
determines that the moving party has met its burden to
demonstrate entitlement to the relief requested therein, the
non-moving party's failure to file or serve any papers as
required by this Rule shall be deemed as consent to the
granting or denial of the motion, as the case may be, unless
good cause be shown.” N.D.N.Y. L.R. 7.1(b)(3). Defendant's
motion to dismiss was properly filed, and Plaintiff has failed
to oppose them. Therefore, the Court must determine whether
Defendant has met her burden to “demonstrate entitlement to
the relief requested” under Local Rule 7.1(b)(3). 1 An inquiry
into whether a movant has met its “burden to demonstrate
entitlement” to dismissal under Local Rule 7.1(b)(3) is a
more limited endeavor than a review of a contested motion.
Specifically, under such an analysis, the movant's burden
has appropriately been characterized as “modest.” 2 This is
because, as a practical matter, the burden requires only that the
movant present an argument that is “facially meritorious.” 3
III. ANALYSIS
*3 After carefully considering the file in this action,
including Defendant's motion to dismiss and Plaintiff's
Complaint, the Court finds that Defendant has met
his lightened burden on his unopposed motion: he has
demonstrated entitlement to the relief requested by presenting
an argument that is facially meritorious. Even if the Court
were to subject Defendant's motion to the more rigorous
scrutiny appropriate for contested motions, the Court would
find that Defendant has met his burden: Plaintiff failed to
exhaust her administrative remedies prior to commencing
this action. 4 As a result, the Court lacks subject matter
jurisdiction over Plaintiff's claims, and her Complaint is
dismissed.
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ACCORDINGLY, it is
ORDERED that Plaintiff's Complaint is DISMISSED. The
clerk is directed to enter judgment and close the case.
All Citations
Not Reported in F.Supp.2d, 2009 WL 2473509
Footnotes
1 See also Fed.R.Civ.P. 7(b)(1) (requiring motions to, inter alia, “state with particularity the grounds therefor”).
2 See, e.g., Ciaprazi v. Goord, 02–CV0915, 2005 WL 3531464, at *8 (N.D.N.Y. Dec.22, 2005) (Sharpe, J.;
Peebles, M.J.) (characterizing defendants' threshold burden on a motion for summary judgment as “modest”)
[citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ]; accord,
Saunders v. Ricks, 03–CV–0598, 2006 WL 3051792, at *9 & n. 60 (N.D.N.Y. Oct.18, 2006) (Hurd, J., adopting
Report–Recommendation of Lowe, M.J.), Smith v. Woods, 03–CV–0480, 2006 WL 1133247, at *17 & n.
109 (N.D.N.Y. Apr.24, 2006) (Hurd, J., adopting Report–Recommendation of Lowe, M.J.); see also Race
Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109–1110 (N.D.N.Y.2003) (Munson, J.) (reviewing
merely whether record contradicted defendant's arguments, and whether record supported plaintiff's claims,
in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] ); Wilmer v. Torian, 96–CV–1269, 1997
U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd, M.J.) (applying prior version of Rule 7.1[b][3],
but recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the reasons
set forth in defendants' motion papers), adopted by 1997 U.S. Dist. LEXIS 16340, at *2 (N .D.N.Y. Oct. 14,
1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95–CV–989, 1996 U.S. Dist. LEXIS 15072, at
*3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.).
3 See, e.g., Hernandez v. Nash, 00–CV–1564, 2003 U.S. Dist. LEXIS 16258, at *7–8, 2003 WL
22143709(N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before a motion to dismiss may be granted under Local
Rule 7.1[b] [3], “the court must review the motion to determine whether it is facially meritorious” ) [emphasis
added; citations omitted]; accord, Topliff v. Wal–Mart Stores East LP, 04–CV–0297, 2007 U.S. Dist. LEXIS
20533, at *28 & n. 43, 2007 WL 911891 (N.D.N.Y. March 22, 2007) (Lowe, M.J.); Hynes v. Kirkpatrick, 05–
CV–0380, 2007 U.S. Dist. LEXIS 24356, at *5–6 & n. 2 (N.D.N.Y. March 21, 2007) (Lowe, M.J.); Sledge v.
Kooi, 04–CV–1311, 2007 U.S. Dist. LEXIS 26583, at *28–29 & n. 40, 2007 WL 951447 (N.D.N.Y. Feb. 12,
2007) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 22458 (N.D.N.Y. March 28, 2007) (McAvoy, J.); Kele
v. Pelkey, 03–CV–0170, 2006 U.S. Dist. LEXIS 95065, at *5 & n. 2, 2006 WL 3940592 (N.D.N.Y. Dec. 19,
2006) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 4336 (N.D.N.Y. Jan. 22, 2007) (Kahn, J.).
4 As noted by Defendant in his motion to dismiss, because Plaintiff failed to follow the required SSA regulations
before bringing this action, there is no final decision for the Court to review under 42 U.S.C. § 405(g).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 115 of 290

Gibbs v. Gadway, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 5191506
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Bryant GIBBS, Plaintiff,
v.
Christopher GADWAY, Defendant.
9:19-CV-281 (GTS/DJS)
|
Signed 10/15/2019
Attorneys and Law Firms
BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points
Correctional Facility, Caller Box 119, Romulus, New York
14541.
HON. LETITIA JAMES, Attorney General of the State of
New York, OF COUNSEL: NICHOLAS L. ZAPP, ESQ.,
Assistant Attorney General, Attorney for Defendant, The
Capitol, Albany, New York 12224.
REPORT-RECOMMENDATION and ORDER
DANIEL J. STEWART, United States Magistrate Judge
*1 Plaintiff, presently an inmate in the custody of the
New York State Department of Corrections and Community
Supervision (“DOCCS”), brings this pro se action pursuant to
42 U.S.C. § 1983, alleging the violation of his constitutional
rights. Dkt. No. 1, Compl. Following initial review of the
Complaint under 28 U.S.C. §§ 1915(e) and 1915A, all claims
other than an Eighth Amendment excessive force claim
against Defendant Gadway were dismissed. Dkt. No. 7. In
lieu of answering the Complaint, Defendant has moved for
summary judgment based on Plaintiff's alleged failure to
exhaust his administrative remedies. Dkt. No. 14. Plaintiff
opposes the Motion. Dkt. No. 17 (“Pl.'s Opp.”). Defendant has
filed a Reply. Dkt. No. 18. For the reasons which follow, the
Court recommends that the Motion for Summary Judgment
be granted.
I. BACKGROUND
Plaintiff alleges that he was assaulted by Defendant Gadway
in June 2016. Compl. at p. 2. That same month Plaintiff
filed an administrative grievance making this same allegation.
Dkt. No. 14-3, Declaration of Christine Gregory (“Gregory
Decl.”) at Ex. B. Given that the grievance concerned alleged
staff misconduct the grievance was forwarded directly to the
facility Superintendent. Gregory Decl. at ¶ 12. On July 16,
2016, the Superintendent responded to the grievance. Id. at
¶ 12 & Ex. C. Plaintiff alleges that he then appealed the
Superintendent's determination to DOCCS' Central Office
Review Committee. Pl.'s Opp. at pp. 4-5. DOCCS has no
record of any such appeal. Gregory Decl. at ¶ 15; Dkt. No.
14-4, Declaration of Rachael Seguin (“Seguin Decl.”), ¶ 9 &
Ex. A.
II. LEGAL STANDARD FOR
SUMMARY JUDGMENT
Pursuant to FED. R. CIV. P. 56(a), summary judgment is
appropriate only where “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” The moving party bears the burden to demonstrate
through “pleadings, depositions, answers to interrogatories,
and admissions on file, together with [ ] affidavits, if any,”
that there is no genuine issue of material fact. F.D.I.C. v.
Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant
must set out specific facts showing that there is a genuine
issue for trial and cannot rest merely on allegations or denials
of the facts submitted by the movant. FED. R. CIV. P.
56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir.
2003) (“Conclusory allegations or denials are ordinarily not
sufficient to defeat a motion for summary judgment when
the moving party has set out a documentary case.”); Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.
1994). To that end, sworn statements are “more than mere
conclusory allegations subject to disregard ... they are specific
and detailed allegations of fact, made under penalty of perjury,
and should be treated as evidence in deciding a summary
judgment motion” and the credibility of such statements is
better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289
(citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)
and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
*2 When considering a motion for summary judgment, the
court must resolve all ambiguities and draw all reasonable
inferences in favor of the non-movant. Nora Beverages, Inc.
v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir.
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1998). “[T]he trial court's task at the summary judgment
motion stage of the litigation is carefully limited to discerning
whether there are any genuine issues of material fact to be
tried, not to deciding them. Its duty, in short, is confined at this
point to issue-finding; it does not extend to issue-resolution.”
Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d
1219, 1224 (2d Cir. 1994). Furthermore, where a party is
proceeding pro se, the court must “read [his or her] supporting
papers liberally, and ... interpret them to raise the strongest
arguments that they suggest.” Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994); see also Soto v. Walker, 44 F.3d
169, 173 (2d Cir. 1995). Nonetheless, summary judgment is
appropriate “[w]here the record taken as a whole could not
lead a rational trier of fact to find for the non-moving party.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
III. DISCUSSION
Defendant seeks summary judgment on the ground that
Plaintiff failed to exhaust his available administrative
remedies by failing to appeal the facility-level denial of
his grievance. Dkt. No. 14-1, Def.'s Mem. of Law at pp.
6-7. Plaintiff counters that he attempted to exhaust his
administrative remedies and that, even if he did not, he should
be excused from the exhaustion requirement. Pl.'s Opp. at pp.
4-5.
A. Exhaustion Procedure
The Prison Litigation Reform Act (“PLRA”) provides, in
pertinent part, that “[n]o action shall be brought with respect
to prison conditions under section 1983 of this title, or
any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). The Supreme Court has held that “the 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). Exhaustion in prisoner cases
covered by § 1997e(a) is mandatory. Id. at 524; Ross v. Blake,
136 S. Ct. 1850, 1856 (2016) (stating that the mandatory
language of § 1997e(a) forecloses judicial discretion to craft
exceptions to the requirement). Furthermore, § 1997e(a)
requires “proper exhaustion,” which means using all steps of
the administrative process and complying with “deadlines and
other critical procedural rules.” Woodford v. Ngo, 548 U.S.
81, 93 (2006). The defendant bears the burden of proving that
the administrative remedies available to the plaintiff were not
exhausted prior to the initiation of a civil action. Howard v.
Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999).
In New York, the administrative remedies consist of a three-
step Inmate Grievance Program (“IGP”). First, a grievance
is submitted to the Inmate Grievance Resolution Committee
(“IGRC”), a committee comprised of both inmates and
facility employees. N.Y. COMP. CODES R. & REGS.
tit. 7, § 701.5(b). An inmate must submit a grievance
“within 21 calendar days of the alleged occurrence.” Id.
at § 701.5(a). An inmate may request an extension of
the time limit within forty-five days of the date of the
alleged occurrence. Id. at § 701.6(g). The IGRC reviews and
investigates the formal complaint and then issues a written
determination. Id. at § 701.5(b). Second, upon appeal of the
IGRC decision, the superintendent of the facility reviews the
IGRC's determination and issues a decision. Id. at § 701.5(c).
Finally, upon appeal of the superintendent's decision, the
Central Office Review Committee (“CORC”) makes the final
administrative determination. Id. at § 701.5(d). Only upon
exhaustion of all three levels of review may a prisoner seek
relief in federal court. Bridgeforth v. Bartlett, 686 F. Supp.
2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter v.
Nussle, 534 U.S. at 524); see also Neal v. Goord, 267 F.3d
116, 121 (2d Cir. 2001), overruled on other grounds by Porter
v. Nussle, 534 U.S. 516.
*3 An expedited procedure exists for grievances regarding
alleged harassment; this procedure also requires the grievant
receive a response from CORC in order to exhaust. 7
N.Y.C.R.R. § 701.8. Pursuant to this expedited procedure,
the inmate may first report the incident to the employee's
immediate supervisor. Id. at § 701.8(a). The inmate's
allegations are then given a grievance number and the
superintendent (or his designee) must promptly decide
whether the grievance, if true, would represent a bona fide
case of harassment. Id. at §§ 701.8(b) & (c).
B. Plaintiff's Failure to Exhaust
Administrative Remedies
1. Whether Plaintiff Actually Filed a Grievance
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The record before the Court establishes that while DOCCS
has a record of Plaintiff's initial grievance, there is no record
of any appeal of the decision on that grievance to CORC.
Gregory Decl. at ¶ 15; Seguin Decl., ¶ 9 & Ex. A. “Included
within the IGP's exhaustion requirement is the prerequisite
that the inmate file an appeal with CORC and receive a
response from CORC prior to filing a federal lawsuit.” White
v. Drake, 2011 WL 4478988, at *3 (N.D.N.Y. Aug. 11, 2011),
report and recommendation adopted, 2011 WL 4478921
(N.D.N.Y. Sept. 26, 2011); see also Berkley v. Ware, 2018
WL 3736791, at *5 (N.D.N.Y. July 6, 2018), report and
recommendation adopted, 2018 WL 3730173 (N.D.N.Y. Aug.
6, 2018) (citing cases).
Plaintiff makes a purely conclusory allegation that he
appealed the grievance denial to CORC. Pl.'s Opp. at p. 4
(“Plaintiff appealed to the CORC”). 1 Significantly, Plaintiff
has not provided a copy of the grievance appeal or even
asserted on what date he filed the appeal. Gough v. Morris,
2018 WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018), report
and recommendation adopted, 2019 WL 416150 (N.D.N.Y.
Feb. 1, 2019) (“there is no evidence in Plaintiff's opposition,
or any other submission, of ... Plaintiff's alleged appeal to
CORC.”). In light of the documented proof that no such
appeal was filed, such a conclusory statement is insufficient
to create a material question of fact on this Motion. Toliver v.
Stefinik, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016);
Richardson v. Eberth, 2016 WL 1271078, at *4 (W.D.N.Y.
Mar. 29, 2016).
Under these circumstances, the record before the Court
establishes that Plaintiff did not fully appeal his grievance
regarding the alleged assault by Gadway. He, therefore, did
not exhaust his administrative remedies.
2. Whether Plaintiff's Failure to Exhaust
Administrative Remedies May be Excused
A prisoner's failure to exhaust administrative remedies may
nonetheless be excused if remedies were unavailable to
the inmate. Ross v. Blake, 136 S. Ct. at 1858. As the
Supreme Court stated in Ross, “[a]n inmate ... must exhaust
available remedies, but need not exhaust unavailable ones.”
Id. The Court provided three potential circumstances in which
administrative remedies may be unavailable: (1) where the
administrative procedure technically exists but operates 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 it 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.” Id. at 1859-60.
*4 Plaintiff appears to make two arguments for finding that
administrative remedies were unavailable to him: the lack of
guidance in DOCCS' grievance procedure and alleged threats
made against him. Pl.'s Opp. at p. 5. Neither is sufficient to
defeat the pending Motion.
Plaintiff first claims that when he became aware that the
appeal he claims to have filed was never received by CORC
he looked to DOCCS's grievance procedure “for guidance on
what to do ... and found no guidance whatsoever on what the
next step would be.” Pl.'s Opp. at p. 5. Relying on Williams v.
Priatno, 829 F.3d 118 (2d Cir. 2016), he contends he should
be excused from the exhaustion requirement. See Pl.'s Opp.
at p. 3.
At the outset, this case presents a readily distinguishable fact
pattern from that which the Second Circuit was confronted
with in Williams. In that case, the District Court had dismissed
the complaint based on lack of exhaustion because Plaintiff
had not administratively appealed his grievance, even though
the grievance had never been officially filed by DOCCS
personnel at the correctional facility. Williams v. Priatno,
829 F.3d at 121. The Second Circuit reversed, finding that
DOCCS' grievance procedures “do not describe a mechanism
for appealing a grievance that was never filed.” Id. at 126.
On the contrary here, there is no dispute that Plaintiff filed
a grievance at the facility and that he received a response.
Gregory Decl., Exs. B & C. It is also clear that DOCCS
regulations specifically address what should have been done
in a situation such as this when an appeal has allegedly
been filed, but not responded to. Specifically, the applicable
regulation provides that “[i]f a grievant does not receive a
copy of the written notice of receipt within 45 days of filing
an appeal, the grievant should contact the IGP supervisor in
writing to confirm that the appeal was filed and transmitted
to CORC.” 7 N.Y.C.R.R. § 701.5(d)(3)(i). This provision
provided specific guidance to Plaintiff on how to proceed
- when he did not receive notice that his appeal had been
received by CORC he should have contacted the facility
inmate grievance staff to verify that his appeal had been
received and processed. There is no evidence that Plaintiff did
so here and his failure cannot provide the basis for excusing
him from the exhaustion requirement. This is not a situation,
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as in Williams, where the procedure was “so opaque and
confusing” that the Plaintiff could have not understood how
to proceed. Williams v. Prianto, 829 F.3d at 126.
Finding Plaintiff's claims unexhausted is consistent with the
decision in Gizewski v. New York State Dep't of Corr. and
Cmty. Supervision which found that an inmate's claim is not
exhausted if he fails to avail himself of the procedure in
section 701.5(d)(3)(i). 2016 WL 3661434, at *13 (N.D.N.Y.
July 5, 2016). In Gizewski, the record established that the
plaintiff had filed an administrative appeal, but DOCCS
personnel had failed to timely forward it to CORC. Id. at
*3. Plaintiff then filed his federal lawsuit before receiving
a decision on the appeal from CORC. Id. at *13. The
Court acknowledged DOCCS' failure to properly process the
appeal, but nonetheless granted judgment to defendants in
part because “Plaintiff [wa]s also at fault for not taking any
further action” pursuant to section 701.5. Id. Plaintiff here
has a less compelling case than in Gizewski since there is no
admissible evidence that he ever, in fact, filed an appeal to
CORC.
*5 Plaintiff also claims that he was threatened and retaliated
against by Defendant. Pl.'s Opp. at p. 5. Under Ross,
threats or other intimidation by prison employees may render
administrative remedies unavailable. Ross v. Blake, 136 S.
Ct. at 1860, n.3. Plaintiff's allegations are entirely conclusory,
however. Plaintiff's Complaint claimed he was threatened
only after filing the grievance, Compl. at p. 1, and he makes
no claim that this alleged threat impacted his ability to appeal
the grievance. McGinnis v. Crissell, 2019 WL 4395410, at
*6 (N.D.N.Y. Apr. 26, 2019), report and recommendation
adopted, 2019 WL 3228867 (N.D.N.Y. July 18, 2019) (citing
cases). There is no specific allegation made by Plaintiff
at all that any retaliatory action was ever taken against
him as a result of filing the grievance. Such “general and
conclusory statements that he was threatened are insufficient
to raise a triable issue of fact as to the unavailability of
the grievance procedure because of intimidation by prison
administrators.” Lewis v. Wasielewski, 2018 WL 4732755, at
*6 (W.D.N.Y. July 10, 2018), report and recommendation
adopted, 2018 WL 4692476 (W.D.N.Y. Oct. 1, 2018) (citing
cases). Plaintiff's conclusory claims, therefore, are no basis
for denying summary judgment.
To the extent Plaintiff attempts to argue that his grievance
appeal may have been tampered with, Pl.'s Opp. at p. 5 (“Once
[inmate mail] is picked up plaintiff no longer has any control
over what happens to that piece of mail.”), his conclusory
allegation in this regard is not sufficient to defeat summary
judgment. “Courts have consistently held [ ] that an inmate's
general claim that his grievance was lost or destroyed does
not excuse the exhaustion requirement.” Rosado v. Fessetto,
2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010); see also
Rodriguez v. Cross, 2017 WL 2791063, at *7 (N.D.N.Y.
May 9, 2017) (“Courts in this Circuit have continuously
held that mere contentions or speculation of grievances being
misplaced by officers do not create a genuine issue of material
fact when there is no evidence to support the allegations.”);
Artis v. Dishaw, 2016 WL 11266599, n.13 (N.D.N.Y. Sept.
12, 2016) (finding that plaintiff's failure to exhaust was not
excusable, in part because, while the plaintiff “state[d] that
some grievances were destroyed, but he has not submitted
any copies of these grievances, nor does he specify when he
attempted to file them.”).
Accordingly, the Court finds that Plaintiff has not established
an issue of material fact as to the availability of administrative
remedies. The Court therefore recommends that Defendants'
Motion be granted based upon Plaintiff's failure to exhaust.
IV. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that Defendant's Motion for Summary
Judgment (Dkt. No. 14) be GRANTED; and it is further
RECOMMENDED, that the Complaint be DISMISSED;
and it is
ORDERED, that the Clerk of the Court serve a copy of this
Report-Recommendation and Order upon the parties to this
action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. 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. 72 & 6(a).
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All Citations
Not Reported in Fed. Supp., 2019 WL 5191506
Footnotes
1 Plaintiff did not submit a sworn statement attesting to the fact that he filed an appeal. Nor did he file a response
to Defendant's Statement of Material Facts. Although a pro se litigant is entitled to a liberal construction of
his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve
him of his obligation to comply with the relevant procedural rules, see Marino v. Watts, 2018 WL 3121612,
at *1 (N.D.N.Y. Mar. 7, 2018), report and recommendation adopted sub nom. Marino v. Schult, 2018 WL
1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 Fed. Appx. 73 (2d Cir. 2019). The Court therefore will deem
the facts as set forth in Defendant's Statement of Material Facts admitted, to the extent they are properly
supported by the record.
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Gibbs v. Gadway, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 1227156
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Bryant GIBBS, Plaintiff,
v.
Christopher L. GADWAY, Corr.
Officer, Clinton Corr. Fac., Defendant.
9:19-CV-0281 (GTS/DJS)
|
Signed 03/13/2020
Attorneys and Law Firms
BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points
Correctional Facility, Caller Box 119, Romulus, New York
14541.
HON. LETITIA A. JAMES, Attorney General for the State
of New York, OF COUNSEL: NICHOLAS LUKE ZAPP,
ESQ., Assistant Attorney General, Counsel for Defendant,
The Capitol, Albany, New York 12224.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this pro se prisoner
civil rights action filed by Bryant Gibbs (“Plaintiff”)
against Christopher L. Gadway, a corrections officer
at Clinton Correctional Facility (“Defendant”), are (1)
United States Magistrate Judge Daniel J. Stewart's Report-
Recommendation recommending that Defendant's motion for
summary judgment be granted, and (2) Plaintiff's Objection
thereto. (Dkt. Nos. 19, 22.) For the reasons set forth below,
the Report-Recommendation is accepted and adopted in its
entirety, and Defendant's motion is granted.
As a threshold matter, the Court finds that Plaintiff's Objection
is untimely. Although the Objection is undated (Dkt. No.
22, at 20), its envelope is post-marked November 5, 2019
(Dkt. No. 22, Attach. 1, at 1). Even if the Court were to
assume that Plaintiff handed the envelope to correctional
officer for mailing before November 5, 2019, he could not
have done so before November 2, 2019, which is the date on
which he had an enclosed affidavit and affirmative of service
notarized (Dkt. No. 22, at 24, 26). The deadline for Plaintiff's
Objection to the Report-Recommendation (which was mailed
to him on October 15, 2019), was November 1, 2019. 1 As
a result, no timely Objection has been filed to the Report-
Recommendation; and the Objection is thus entitled to merely
a clear-error review, 2 which the Court finds it easily satisfies
for the cogent reasons stated therein (see generally Dkt. No.
19).
In any event, even if the Court were to accept Plaintiff's
untimely Objection, the Court would still accept and adopt the
Report-Recommendation. The thrust of Plaintiff's Objection
is an attempt to adduce evidence (specifically, sworn
testimony and a letter) showing that he had submitted to
the Central Office Review Committee (or “CORC”) a timely
appeal from the superintendent's denial of his grievance.
(See, e.g., Dkt. No. 22, at 21-24 [containing Plf.’s Affidavit];
Dkt. No. 22, at 25 [containing a letter from Plaintiff to
CORC]; Dkt. No. 22, at 1-20 [containing Plf.’s verified
Objections].) However, none of this evidence was submitted
to Magistrate Judge Stewart. (Compare id. with Dkt. No. 17
[Plf.’s Response to Def.’s Motion for Summary Judgment].)
This failure is inexcusable given the specific notice that
Plaintiff was twice given of the consequences of evidentiary
deficiencies in his response to Defendant's motion. (Dkt. No.
14, at 3; Dkt. No. 15.) A district court may, and ordinarily
does, refuse to consider evidentiary material that could have
been, but was not, presented to the magistrate judge in the first
instance. 3 Although Plaintiff asserts that “[i]t wasn't until
recently that [he] ... found a copy of the ... letter that he ...
[had] written to the Central Office Review Committee” (Dkt.
No. 22, at 14), he makes no showing that his failure to
discover the letter sooner occurred despite his exercise of
due diligence. Moreover, he does not even attempt to excuse
his failure to submit his sworn testimony to Magistrate
Judge Stewart. Under the circumstances, the Court finds
that considering Plaintiff's late-blossoming evidence would
frustrate the purpose of the Federal Magistrates Act of 1968.
*2 Finally, even if the Court were to consider this late-
blossoming evidence, the Court would be forced to reject it.
Ordinarily, of course, a district court may not make credibility
determinations on a motion for summary judgment. However,
that general rule contains an exception: where, as here,
the non-movant has adduced evidence that is so internally
contradictory that no reasonable juror would undertake the
suspension of disbelief necessary to credit the non-movant's
allegations. See Jeffreys v. City of New York, 426 F.3d 549,
554-55 (2d Cir. 2005) (setting forth applicable standard
for when to disregard testimony on motion for summary
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judgment). In such a circumstance, the district court must
make a credibility determination because the very act of
considering the portion of evidence that would create a
genuine dispute of material fact would constitute a rejection
of the contradictory evidence as not credible. Here, the
facts are analogous to the extreme facts present in Jeffreys.
Plaintiff has adduced evidence that purports to show both
(1) that immediately after the superintendent's denial of his
grievance on July 16, 2016, Plaintiff filed an appeal with
CORC (Dkt. No. 22, at 3, 22), and (2) “over two months”
before July 16, 2016, Plaintiff filed his appeal with CORC,
then (approximately a month later) sent a letter complaining
about its non-response to his appeal, and then (on July 16,
2016) sent a second such letter (Dkt. No. 22, at 25). It is
undisputed that Plaintiff filed his grievance on June 13, 2016.
(Dkt. No. 14, Attach. 2, at ¶ 17.) It is also undisputed that the
superintendent denied that grievance on July 16, 2016. (Id.
at ¶ 19.) It is simply impossible that Plaintiff appealed that
denial two months before July 16, 2016 (or on or about May
16, 2016).
For each of these three alternative reasons, the Court rejects
Plaintiff's Objection and accepts and adopts Magistrate Judge
Stewart's Report-Recommendation.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Stewart's Report-
Recommendation (Dkt. No. 19) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendant's motion for summary judgment
(Dkt. No. 14) is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED.
All Citations
Not Reported in Fed. Supp., 2020 WL 1227156
Footnotes
1 Under the applicable rules, the time period for the filing of an Objection is fourteen (14) calendar days from
the date of filing of the Report-Recommendation (unless the fourteenth day is a Saturday, Sunday, or legal
holiday, in which case the period continues to run until then end of the next day that is not a Saturday, Sunday,
or legal holiday), plus three (3) calendar days if the Report-Recommendation was served on the objecting
party by mail. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); N.D.N.Y. L.R. 72.1(c); Fed. R. Civ. P. 6(a)
(1)(C); Fed. R. Civ. P. 6(d).
2 “When no timely objection [to a recommendation] is filed, the court need only satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition. When performing such a “clear error” review, the court is permitted to
adopt the sections reviewed “so long as those sections are not facially erroneous.” See Batista v. Walker, 94-
CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those
sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections
are not facially erroneous.”).
3 See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a magistrate's
report before the district court, a party has no right to present further testimony when it offers no justification
for not offering the testimony at the hearing before the magistrate.”) [internal quotation marks and citations
omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding
that district court did not abuse its discretion in denying plaintiff's request to present additional testimony
where plaintiff “offered no justification for not offering the testimony at the hearing before the magistrate”);
cf. U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings
would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in
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the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’
does not indicate that a secondary evidentiary hearing is required.”).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Grant v. Annucci, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1919475
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Jamal GRANT, Plaintiff,
v.
Anthony ANNUCCI, Commissioner, et al., Defendants.
1:19-CV-01188 EAW
|
Signed July 11, 2025
Attorneys and Law Firms
Jamal Grant, Comstock, NY, Pro Se.
Daniel Ryan Maguire, Joel J. Terragnoli, New York State
Attorney General's Office, Buffalo, NY, for Defendant
Shields.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
INTRODUCTION
*1 Pro se plaintiff Jamal 1 Grant (“Plaintiff”) commenced
this action pursuant to 42 U.S.C. § 1983 asserting claims that
arose while he was incarcerated at Five Points Correctional
Facility (“Five Points”), a facility within the New York
State Department of Corrections and Community Supervision
(“DOCCS”). (Dkt. 1; Dkt. 17; Dkt. 23). Presently before the
Court is a motion for summary judgment (Dkt. 64) filed by
defendant Robert Shields (“Defendant”), who was formerly
employed as the Acting Deputy Superintendent of Security
at Five Points (see Dkt. 64-9 at ¶¶ 1-2). 2 For the following
reasons, Defendant's motion is granted.
BACKGROUND
Plaintiff filed his complaint on September 5, 2019, and
amended complaint on June 1, 2021. (Dkt. 1; Dkt. 17). On
October 4, 2021, Plaintiff filed a second amended complaint.
(Dkt. 23). The Court screened Plaintiff's complaint, amended
complaint, and second amended complaint pursuant to
28 U.S.C. §§ 1915(e)(2)(B) and 1915A. Based on that
screening, Plaintiff's First Amendment retaliation claim and
Eighth Amendment conditions of confinement claim against
Defendant were permitted to proceed to service. (Dkt. 14 at
14; Dkt. 19 at 14; see Dkt. 31 at 6-11). The crux of Plaintiff's
claims that survived screening were that upon his release
from the Special Housing Unit, Defendant targeted Plaintiff
by placing him on contraband watch between August 13 and
August 21, 2019, during which time Plaintiff was allegedly
stripped naked and forced to sleep on a steel bed with no
mattress, sheets, or a blanket for nine days, written up with
misbehavior reports, and denied medical care. (See Dkt. 31
at 6-7, 9, 10; see also Dkt. 64-2 at ¶¶ 7, 11, 39 (outlining
placement on contraband watch on August 13, 2019, and
release from contraband watch on August 21, 2019)).
On October 17, 2024, Defendant filed his motion for
summary judgment. (Dkt. 64; Dkt. 65). Plaintiff filed a
response to the motion for summary judgment on January 21,
2025. (Dkt. 69). 3 Defendant replied on January 30, 2025.
(Dkt. 70).
DISCUSSION
I. Summary Judgment Legal Standard
*2 Rule 56 of the Federal Rules of Civil Procedure provides
that summary judgment should be granted if the moving party
establishes “that 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). The Court should grant summary
judgment if, after considering the evidence in the light most
favorable to the nonmoving party, it finds that no rational jury
could find in favor of that party. Scott v. Harris, 550 U.S. 372,
380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586-87 (1986)).
“The moving party bears the burden of showing the absence
of a genuine dispute as to any material fact....” Crawford
v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir.
2014). “Where the non-moving party will bear the burden
of proof at trial, the party moving for summary judgment
may meet its burden by showing the evidentiary materials
of record, if reduced to admissible evidence, would be
insufficient to carry the non-movant's burden of proof at
trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103
(W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986)). Once the moving party has met its
burden, the opposing party “must do more than simply show
that there is some metaphysical doubt as to the material facts,
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and may not rely on conclusory allegations or unsubstantiated
speculation.” Robinson v. Concentra Health Servs., Inc., 781
F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly &
Co., 654 F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-
moving party “must come forward with specific evidence
demonstrating the existence of a genuine dispute of material
fact.” Brown, 654 F.3d at 358. Indeed, “the mere existence
of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986).
II. Plaintiff's Claims are Unexhausted
Defendant argues that he is entitled to summary judgment
on Plaintiff's claims because Plaintiff never filed a grievance
related to his claims against Defendant or otherwise
exhausted his administrative remedies. (Dkt. 64-1 at 10-12).
Plaintiff's opposition admits that he has no documents to
suggest otherwise (Dkt. 69 at 2), and a review of Plaintiff's
other filings in this case reveal no evidence that he exhausted
his administrative remedies with respect to the claims against
Defendant.
The Prison Litigation Reform Act of 1995 (“PLRA”) provides
that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a). “[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).
To satisfy the PLRA's exhaustion requirement, a plaintiff
must demonstrate the “proper exhaustion of administrative
remedies.” Woodford v. Ngo, 548 U.S. 81, 90 (2006).
“Compliance with prison grievance procedures...is all that
is required by the PLRA to ‘properly exhaust.’ ” Jones v.
Bock, 549 U.S. 199, 218 (2007). As such, “[t]he exhaustion
inquiry...requires that [the court] look at the state prison
procedures and the prisoner's grievance to determine whether
the prisoner has complied with those procedures.” Espinal v.
Goord, 558 F.3d 119, 124 (2d Cir. 2009).
*3 “Exhaustion is mandatory—unexhausted claims may
not be pursued in federal court.” Amador v. Andrews, 655
F.3d 89, 96 (2d Cir. 2011). However, “[f]ailure to exhaust
administrative remedies is an affirmative defense...and when
raised as a basis for summary judgment, the defendant ‘bears
the initial burden of establishing, by pointing to legally
sufficient sources such as statutes, regulations, or grievance
procedures, that a grievance process exists and applies to the
underlying dispute.’ ” Deleon v. Ayers, No. 16-CV-6848L,
2023 WL 171889, at *2 (W.D.N.Y. Jan. 12, 2023) (quoting
Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir.
2015)).
In New York, proper exhaustion entails going through a
three-step appeal procedure set out in 7 N.Y.C.C.R. § 701.5.
Garraway v. Smith, No. 12-CV-924S, 2020 WL 491328, at
*4 (W.D.N.Y. Jan. 30, 2020). This section provides:
(1) the inmate must submit a written
complaint to the Grievance Clerk
within 21 calendar days of the
alleged occurrence; the Grievance
Clerk then submits the complaint
to the Inmate Grievance Resolution
Committee (“IGRC”) for investigation
and review; (2) if the IGRC denies the
grievance, the inmate may appeal to
the superintendent of the facility by
filing an appeal with the [Grievance
Clerk]; (3) after the superintendent
issues a decision, the inmate may
appeal to CORC, which makes the
final administrative determination.
Id. An inmate may only seek relief under § 1983 “[i]f all three
levels of review are exhausted.” Id.
“[I]nmates must provide enough information about the
conduct of which they complain to allow prison officials to
take appropriate responsive measures.” Johnson v. Testman,
380 F.3d 691, 697 (2d Cir. 2004). DOCCS Directive 4040,
which Defendant has submitted in support of his motion,
pertains to the Inmate Grievance Program, and requires that
the contents of the grievance “contain a concise, specific
description of the problem and the action requested and
indicate what actions the grievant has taken to resolve the
complaint.” (Dkt. 64-5 at 12). “This requirement, the Second
Circuit has held, is analogous to the requirements of notice
pleading.” Solano v. Aubin, No. 9:20-CV-1378 (BKS/ML),
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2023 WL 5200397, at *5 (N.D.N.Y. Aug. 14, 2023) (citing
Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006)). “As in a
notice pleading system, the grievant need not lay out the facts,
articulate legal theories, or demand particular relief[;] [a]ll
the grievance need do is object intelligibly to some asserted
shortcoming.” Johnson, 380 F.3d at 697 (quotation omitted).
DOCCS Directive 4040 does not require that inmates name
specific defendants. (See Dkt. 64-5 at 12); see also Solano,
2023 WL 5200397, at *5 (“a grievance need not identify
parties by name”). Nor does the PLRA itself impose a “name
all defendants” requirement. Jones v. Bock, 549 U.S. 199, 217
(2007).
In support of his argument that Plaintiff failed to exhaust
his administrative remedies, Defendant attaches a declaration
with exhibits from Mandi Schultz, the Five Points Inmate
Grievance Supervisor, who establishes that a search of the
IGRC revealed no grievances filed by Plaintiff regarding his
being placed on contraband watch between August 13-19,
2019. (Dkt. 64-6 at ¶¶ 8-10 & Ex. B). Defendant also attaches
a declaration with exhibits from Rachael Seguin, the DOCCS
Director of Incarcerated Grievance Program, (Dkt. 64-5),
who establishes that Plaintiff did not appeal any facility-
level determinations from Five Points during the relevant time
regarding his placement on contraband watch (id. at ¶ 11). The
printout from the CORC database submitted by Ms. Seguin
shows 68 compiled grievances appealed to CORC by Plaintiff
between April 10, 2006, and January 23, 2023. (See id.).
But none relate to the issues in this litigation. Plaintiff filed
a grievance on July 25, 2019 (i.e., before the relevant time
period at issue in this litigation), stating that he had not been
seen by medical. (Id. at 26). Plaintiff's next grievance was
filed on November 5, 2019, complaining about “[k]eeplock”
in SHU. (Id.). 4
*4 Thus, Defendant has established through admissible
evidence that Plaintiff did not file any grievances regarding
his retaliation claim and conditions of confinement claim.
Plaintiff has submitted no evidence to contradict these
undisputed facts. The Court has considered that Plaintiff
attached a letter to his amended complaint, which is directed
to the Clerk of Court and attempts to bring a criminal action
against Defendant and other officers. (Dkt. 17 at 14). But
complaint letters do not satisfy exhaustion requirements.
Hernandez v. Coffey, No. 99 CIV. 11615 (WHP), 2003 WL
22241431, at *3 (S.D.N.Y. Sept. 29, 2003) (holding that
the plaintiff's “complaint letters are insufficient to exhaust
his administrative remedies”) (collecting cases). Accordingly,
Defendant's request for summary judgment on this basis is
granted.
CONCLUSION
For the foregoing reasons, Defendant's motion for summary
judgment (Dkt. 64) is granted and the Clerk of Court is
directed to enter judgment in favor of Defendant.
SO ORDERED.
All Citations
Slip Copy, 2025 WL 1919475
Footnotes
1 Based on a review of the records (see, e.g., Dkt. 64-8 at 11 (Plaintiff's deposition transcript where he spells
his name)), it is apparent that Plaintiff's first name is misspelled on the docket. The Clerk of Court is directed
to change the caption as noted above and change Plaintiff's first name from “Jamah” to “Jamal.”
2 The only claims that were permitted to proceed to service were claims against defendant Shields. (See Dkt.
19 at 14). Thus, consistent with the Court's prior directions (see, e.g., Dkt. 19 at 14), the Clerk of Court is
directed to terminate all other defendants.
3 Despite being granted an extension of time to file his response (Dkt. 68) and being afforded three months to
respond to the summary judgment motion, Plaintiff's response fails to adequately address the merits of the
motion (see Dkt. 69). Plaintiff claims that he is unable to properly respond to the motion because of his lack of
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Grant v. Annucci, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
mental capacity and an inadequate law library. (Id.). But Plaintiff has been actively litigating this action pro se
for six years, filing amended pleadings and successfully defending a motion to dismiss. (See, e.g., Dkt. 29).
Plaintiff's claims that he is not able to defend the summary judgment motion are conclusory and contradicted
by Plaintiff's track record of litigation activity in this matter. In other words, the record indicates that Plaintiff
has pursued and can pursue this action. Indeed, this is not Plaintiff's first pro se lawsuit that he has pursued in
this district. See Grant v. Myer et al., Case No. 6:07-cv-06256-CJS-MWP, Dkt. 24 (W.D.N.Y. Jan. 26, 2010)
(case settled by payment to Plaintiff of $5,400). Notwithstanding the lack of any meaningful response from
Plaintiff, the Court has carefully considered the record in resolving the pending summary judgment motion
and will not just accept Defendant's contention that the material facts should be deemed undisputed by virtue
of Plaintiff's failure to adequately respond. (Dkt. 70 at 2-3).
4 Even if the Court were to assume the November 5, 2019 grievance was written about Defendant, the
grievance was filed well after the allowed 21 calendar days after the alleged occurrence. See Garraway,
2020 WL 491328, at *4.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Hernandez v. Coffey, Not Reported in F.Supp.2d (2003)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2003 WL 22241431
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Jose HERNANDEZ, Plaintiff,
v.
Kevin R. COFFEY, C.O., Lawrence J. Featherston, C.O.
James Chamberlain, Sgt., M. Taylor, Nurse, Defendants.
No. 99 Civ. 11615(WHP).
|
Sept. 29, 2003.
Synopsis
Inmate brought a pro se § 1983 action against corrections
officers, alleging civil rights violations. On a defense motion
for judgment on the pleadings, the District Court, Pauley,
J., held that the inmate failed to satisfy the Prison Litigation
Reform Act's (PLRA) exhaustion requirement.
Motion granted.
West Headnotes (3)
[1] Courts In General; Retroactive or
Prospective Operation
Supreme court decision establishing that the
Prison Litigation Reform Act (PLRA) requires
a prisoner to exhaust every claim he wishes
to assert prior to filing a claim in district
court applies retroactively to prisoners who
filed their suits prior to the Supreme Court's
pronouncement. Civil Rights of Institutionalized
Persons Act, § 7(a), as amended, 42 U.S.C.A. §
1997e(a).
2 Cases that cite this headnote
[2] Prisons Particular Cases
Inmate's alleged complaint letters to the
Commissioner of the New York Department of
Corrections, a county district attorney, and the
State Police did not satisfy the Prison Litigation
Reform Act's (PLRA) exhaustion requirement.
Civil Rights of Institutionalized Persons Act, §
7(a), as amended, 42 U.S.C.A. § 1997e(a); N.Y.
Correction Law § 139; N.Y. Comp.Codes R. &
Regs tit. 7, § 701.7(a)(1).
9 Cases that cite this headnote
[3] Civil Rights Criminal Law Enforcement;
Prisons
Inmate claiming civil rights violations in
connection with an alleged attack by corrections
officers failed to satisfy the Prison Litigation
Reform Act's (PLRA) exhaustion requirement,
as required to file § 1983 suit, where he did not
exhaust his administrative appeals or advance
any excuse for his failure to exhaust. Civil
Rights of Institutionalized Persons Act, § 7(a),
as amended, 42 U.S.C.A. § 1997e(a); N.Y.
Correction Law § 139; N.Y. Comp.Codes R. &
Regs tit. 7, § 701.7(a)(1).
18 Cases that cite this headnote
Attorneys and Law Firms
Jose Hernandez, Sullivan Correctional Facility, Fallsburg,
New York, Plaintiff, pro se.
Susan H. Odessky, Assistant Attorney General, State of New
York, Office of the Attorney General, New York, New York,
for Defendants.
MEMORANDUM AND ORDER
PAULEY, J.
*1 Pro se plaintiff, Jose Hernandez, brings this action
against defendants Correction Officer Kevin R. Coffey,
Corrections Officer Lawrence J. Featherston, Sergeant James
Chamberlain, and M. (Michelle) Taylor, all employed at
Downstate Correction Facility (“Downstate”), for civil rights
violations pursuant to 42 U.S.C. § 1983 (2003). Defendants
move for judgment on the pleadings pursuant to Rule 12(c)
of the Federal Rules of Civil Procedure based on Hernandez's
failure to exhaust his available administrative remedies prior
to the initiation of this action. For the following reasons,
defendants' motion is granted.
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Hernandez v. Coffey, Not Reported in F.Supp.2d (2003)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Background
The Complaint alleges a horrific attack by the New York State
Department of Correctional Services (“DOCS”) personnel
on Hernandez while he was incarcerated at Downstate.
Hernandez was transiting through Downstate to Clinton
Correctional Facility (“Clinton”) following his appearance in
New York State Family Court, King County. Following the
attack, Hernandez was warned that if he told anyone about it
he would be killed.
The alleged attack and events in its wake occurred on
November 5 and 6, 1998. Hernandez commenced this action
on November 29, 1999, alleging that the defendants beat him,
and denied him medical care, in violation of his constitutional
rights to due process and to be free from cruel and unusual
punishment.
In his Complaint, and in an affidavit submitted to this Court
on May 16, 2002, 1 Hernandez alleges that he exhausted the
administrative remedies available to him by sending letters to
Glenn S. Goord, the Commissioner of DOCS, the New York
State Police, and William B. Grady, District Attorney of the
“Poughkeepsie area.” 2 Hernandez further indicated that as a
result of these letters, no action was taken and “no results”
were achieved.
Discussion
The applicable legal standards for a Rule 12(c) motion for
judgment on the pleadings are the same as a Rule 12(b)
(6) motion to dismiss for failure to state a claim. King v.
American Airlines, Inc., 284 F.3d 352, 356 (2d Cir.2002);
Bunting v. Nagy, No. 01 Civ. 5716(SHS), 2003 WL 21305339,
at *2 (S.D.N.Y. June 6, 2003). The Court must accept as
true the allegations contained in the Complaint and draw all
reasonable inferences in favor of the nonmoving party. King,
284 F.3d at 356; Burnette v. Carothers, 192 F.3d 52, 56 (2d
Cir.1999). Dismissal of a complaint pursuant to Rule 12(c)
is appropriate only where “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v.. Gibson, 355
U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord
Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). Further,
as with a 12(b)(6) motion, a pro se litigant such as Hernandez
is allowed a special latitude in responding to a motion for
judgment on the pleadings. See Bunting, 2003 WL 21305339,
at *2.
Defendants present this Court with a single challenge
to the Complaint. Defendants argue that judgment on
the pleadings should be granted because, accepting the
allegations contained in the Complaint as true and drawing
all reasonable inferences in favor of the non-moving party,
Hernandez failed to exhaust his administrative remedies as
required by Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983,
152 L.Ed.2d 12 (2002). Hernandez contends that he filed
both formal and informal grievances, but that no action was
taken by DOCS, and thus his remedies should be deemed
exhausted. 3
I. Failure to Exhaust Administrative Remedies
*2 As Amended, the Prison Litigation Reform Act of 1996
(“PLRA”), 42 USC § 1997e(a) provides:
No action shall be brought with respect
to prison conditions under section
1983 of this title, or another Federal
law, by a prisoner confined in any jail,
prison or other correctional facility
until such administrative remedies as
are available are exhausted.
This provision of the PLRA imposes a mandatory exhaustion
requirement on incarcerated plaintiffs prior to filing an action
with the Court. See Porter, 534 U.S. at 524; Brown v.
Commissioner, No. 99 Civ. 976(WHP), 2003 WL 1571699,
at *3 (S.D.N.Y. Mar.26, 2003); Baskerville v. Blot, 224
F.Supp.2d 723, 728-29 (S.D.N.Y.2003); Harris v. Totten, 244
F.Supp.2d 229, 232 (S.D.N.Y.2003). The effectiveness of
the administrative remedy is no longer a prerequisite to the
exhaustion requirement. Porter, 534 U.S. at 524.
Prior to the Supreme Court's decision in Porter, the law
in the Second Circuit was that the “ ‘prison conditions'
phrase [in the PLRA] cover[ed] only conditions affecting
prisoners generally, not single incidents that immediately
affect only particular prisoners, such as corrections officers'
use of excessive force.” Porter, 534 U.S. at 516. However, the
Supreme Court, in Porter, held that “the PLRA's exhaustion
requirement applies to all inmate suits about prison life,
whether they involve general circumstances or particular
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episodes, and whether they allege excessive force or some
other wrong.” Porter, 534 U.S. at 516.
Thus, after Porter it is clear that the PLRA requires a prisoner
to exhaust every claim he wishes to assert prior to filing
a claim in district court. See Muhammad v. Pico, No. 02
Civ. 1052(AJP), 2003 WL 21792158, at *7-8 (S.D.N.Y.
Aug.5, 2003); Brown, 2003 WL 1571699, at *2; Harris,
244 F.Supp.2d at 232. Subsequent to Porter, courts in the
Second Circuit have routinely ruled that excessive force and
deliberate indifference claims, such as plaintiff's, are subject
to the PLRA's exhaustion requirements. See, e.g., Lawrence
v. Goord, 304 F.3d 198, 199 (2nd Cir.2002); Harris, 244
F.Supp.2d at 232-33. Accordingly, all of Hernandez's claims
are subject to the PLRA's exhaustion requirement.
[1] Hernandez argues that he should not be subject to Porter
because the law in the Second Circuit when he filed this action
did not require administrative exhaustion for claims such as
his. Assuming arguendo that plaintiff's analysis is correct,
there is no question that the law as enunciated in Porter
applies retroactively to prisoners such as Hernandez who
filed their suits prior to the Supreme Court's pronouncement
in Porter. See Brown, 2003 WL 1571699, at *3; Harris,
244 F.Supp.2d at 232 n. 2; Espinal v. Goord, No. 01 Civ.
6569(NRB), 2002 WL 1585549, at *2 n. 3; Hemphill v. New
York, 198 F.Supp.2d 546, 549-50 (S.D.N.Y.2002). Moreover,
application of the Porter rule to plaintiff is neither inequitable
nor unconstitutional since the Second Circuit's decisions on
which plaintiff relies “were not handed down until well after
the time when [plaintiff] failed to file a timely grievance,”
which in this case was late 1998. Hemphill, 198 F.Supp.2d at
550; see, e.g., Lawrence v. Goord, 238 F.3d 182 (2d Cir.2001),
vacated by Goord v. Lawrence, 535 U.S. 901, 122 S.Ct. 1200,
152 L.Ed.2d 139 (2002); Nussle v. Willette, 224 F.3d 95 (2d
Cir.2000), vacated by Porter, 534 U.S. 516, 122 S.Ct. 983,
152 L.Ed.2d 12.
A. DOCS' Grievance Procedures
*3 [2] DOCS has a well-established three-step
administrative inmate grievance program (“IGP”) to resolve
inmate grievances. See N.Y. Correction Law § 139; N.Y.
Comp.Codes R. & Regs. tit. 7, § 701 .7(a)(1). The IGP
requires the inmate to: (1) file a complaint with the Inmate
Grievance Review Committee (“IGRC”); (2) appeal to
the facility superintendent; and (3) appeal to the DOCS
Central Office Review Committee (“CORC”) in Albany. N.Y.
Comp.Codes R. & Regs tit. 7, § 701.7(a)(1); see also Brown,
2003 WL 1571699, at *3 (explaining IGP process); Harris,
244 F.Supp.2d at 233 (same); Hemphill, 198 F.Supp.2d at 548
(same).
A prisoner's remedies are not deemed exhausted until he goes
though all three levels of the IGP. Thus, once an inmate
files a grievance, he must exhaust all administrative appeals
in order to satisfy the PLRA's exhaustion requirement. 4
Brown, 2003 WL 1571699, at *3; Rivera v. Goord, 253
F.Supp.2d 735, 746 (S.D.N.Y.2003); Harris, 244 F.Supp.2d
at 232; Kearsey v. Williams, No. 99 Civ. 8646(DAB), 2002
WL 1268014, at *2 (S.D.N.Y. June 6, 2002); Waters v.
Schneider, No. 01 Civ. 5217(SHS), 2002 WL 727025, at
*1-2 (S.D.N.Y. Apr.23, 2002); Hemphill, 198 F.Supp.2d
at 548-49; see also Sulton v. Wright, 265 F.Supp.2d 292,
296 (S.D.N.Y.2003) (“Inmates must therefore exhaust all
administrative remedies, at all levels of appeal, in order for
their claims to survive a motion to dismiss.”); Sedney v.
Hasse, No. 02 Civ. 2583(DC), 2003 WL 21939702, at *4
(S.D.N.Y. Aug.17, 2003) (“A prisoner has not exhausted his
administrative remedies until he goes through all three levels
of the grievance procedure.”). Prison officials are entitled
to require strict compliance with the existing grievance
procedures. Sedney, 2003 WL 21939702, at *4; Baskerville,
224 F.Supp.2d at 730; Hemphill, 198 F.Supp.2d at 549.
To satisfy the PLRA exhaustion requirement, inmates must
follow procedures established by New York State rather
than “invent their own grievance procedures.” Hemphill, 198
F.Supp.2d at 549.
Both in his Complaint and affidavit, Hernandez
acknowledges that he never filed a formal IGP grievance
for his claims in this action. Instead, he asserts that he
sought to resolve his grievance by writing to Glenn S.
Goord, the Commissioner of DOCS, the Dutchess County
District Attorney and the State Police in Albany. However,
it is well settled that complaint letters to DOCS or prison
officials do not satisfy the PLRA's exhaustion requirements.
See Sedney, 2003 WL 21939702, at *4 (noting that
courts have “repeatedly held that complaint letters to the
DOCS Commissioner or the facility Superintendent do not
satisfy the PLRA's exhaustion requirements.”); Muhammad,
2003 WL 21792158, at *8 (“District court decisions in
this circuit have repeatedly held that complaint letters to
DOCS Commissioner or the facility Superintendent do not
satisfy the PLRA's exhaustion requirements.”); Harris, 244
F.Supp.2d at 233 (“However, letters to prison officials do
not satisfy the exhaustion requirement of the PLRA where
the inmate has failed to follow the established grievance
procedures.”); Hemphill, 198 F.Supp.2d at 549 (“[A] letter to
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Hernandez v. Coffey, Not Reported in F.Supp.2d (2003)
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the Superintendent has been expressly held to be ‘insufficient’
to warrant considering a matter ‘effectively grieved.” ’);
Beatty v. Goord, 210 F.Supp.2d 250, 255-56 (S.D.N.Y.2000)
(holding that writing letters to the Superintendent is not
sufficient to comply with the IGP). The same rationale for
requiring strict compliance with the IGP applies with equal
force to the State Police and the District Attorney. Thus,
Hernandez's complaint letters are insufficient to exhaust his
administrative remedies.
*4 [3] Perhaps recognizing his deficiencies, Hernandez
asserts in opposition to defendants' motion, that he filed a
timely grievance. (Opp. at 5-6, 9-10.) Specifically, he now
claims to have filed a grievance at Clinton on November
10, 1998, but asserts it was never answered, and that he did
not receive a grievance number or hearing. (Opp. at 5 &
Ex. F.) Hernandez also contends that he sent a request for a
response to the chairperson of the inmate grievance office at
Clinton on February 15, 2000. (Opp. at 6 & Ex. I.) These
new allegations contradict Hernandez's earlier statements
concerning his exhaustion efforts. However, this Court need
not decide whether to accept Hernandez's new allegations
because even if they are true, he still has not properly
exhausted his administrative remedies.
As noted above, a prisoner must proceed though all
three levels of the IGP to satisfy the PLRA's exhaustion
requirement. Brown, 2003 WL 1571699, at *3; Rivera, 253
F.Supp.2d at 746; Harris, 244 F.Supp.2d at 232; Waters v.
Schneider, No. 01 Civ. 5217(SHS), 2002 WL 727025, at
*1 (S.D.N.Y. Apr.23, 2002); Hemphill, 198 F.Supp.2d at
548-49. Thus, where a prisoner files a grievance, and the
IGRC does not respond, the inmate must nevertheless exhaust
his appeals to the facility superintendent and the CORC.
Brown, 2003 WL 1571699, at *3; Harris, 244 F.Supp.2d
at 232; Kearsey, 2002 WL 1268014, at *2; Waters, 2002
WL 727025, at *1; Hemphill, 198 F.Supp.2d at 548-49; see
also Saunders v. Goord, No. 98 Civ. 8501(JGK), 2002 WL
1751341, at *3 (S.D.N.Y. July 29, 2002) (“Even if the plaintiff
did not receive responses directed toward some grievances,
the plaintiff was required, at a minimum, to make reasonable
attempts to appeal those grievances before bringing an action
in federal court....”). Hernandez's latest allegations do not
establish that he pursued his available appeals within the IGP.
Even assuming that plaintiff's request for a response was a
level two appeal under the IGP, it is clear that plaintiff never
appealed to the CORC in Albany, and thus his claims are
unexhausted. Brown, 2003 WL 1571699, at *3; Benitez v.
Straley, No. 01 Civ. 181(RCC), 2002 WL 31093608, at *3
(S.D.N.Y. Sept.18, 2002); Saunders, 2002 WL 1751341, at
*3; Kearsey, 2002 WL 1268014, at *2; Waters, 2002 WL
727025, at *1; Hemphill, 198 F.Supp.2d at 548.
Finally, Hernandez has not advanced any excuse for his
failure to exhaust his administrative remedies under the IGP.
The circumstances of this case do not warrant a determination
that Hernandez exhausted his administrative remedies. 5 For
example, he does not allege that anyone hindered his ability
to file a grievance. Although Hernandez alleges that he was
threatened with retaliation, he does not allege that those
threats hindered him in any way. It is evident that he was
not hindered from reporting the alleged incident because he
wrote to DOCS officials and the District Attorney's office
complaining about the attack at Downstate.
Conclusion
*5 Accordingly, Hernandez's failure to exhaust available
administrative remedies compels judgment on the pleadings
in defendant's favor and dismissal of the Complaint.
Dismissal of an action for failure to comply with the PLRA's
exhaustion requirement is without prejudice. Morales v.
Mackalm, 278 F.3d 126, 128 (2d Cir.2002) (per curiam).
Defendant's motion for judgment on the pleadings is granted
and the Complaint is dismissed without prejudice. The Clerk
fo the Court is directed to close this case.
All Citations
Not Reported in F.Supp.2d, 2003 WL 22241431
Footnotes
1 At a pre-trial conference on May 3, 2002, this Court directed Hernandez to submit a sworn affidavit explaining
how he exhausted his administrative remedies concerning the instant claims, and attaching any copies
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of grievances or letters he alleges were part of that process. The Court received such an affidavit from
Hernandez on May 16, 2002. (Affidavit of Jose Hernandez, dated May 10, 2002 (“Hernandez Aff.”).)
2 Plaintiff also notes that he sent a letter complaining about the incidents to then-Chief Judge Thomas P. Griesa
of the Southern District of New York. Then-Chief Judge Griesa subsequently replied to plaintiff's letter by
sending him instructions on how to file a civil lawsuit. (Hernandez Aff'. ¶ 6.)
3 Defendants attach several documents to their motion for judgment on the pleadings, and argue that the Court
may consider them without converting the motion to one for summary judgment under Rule 56 because they
are incorporated by reference into the Complaint. Without determining whether defendants are correct, this
Court will not consider the documents defendants submitted since this Court finds that defendants' motion
must be granted based on the four corners of the Complaint and plaintiff's affidavit.
4 The Second Circuit and some courts in this district have found that a prisoner can be deemed to have
informally exhausted his remedies if a resolution of the issue in the prisoner's favor has been reached. See,
e.g., Marvin v. Goord, 255 F.3d 40, 43 n. 3 (2d Cir.2001); Sedney v. Hasse, No. 02 Civ. 2583(DC), 2003
WL 21939702, at *4 (S.D.N.Y. Aug.17, 2003); Rivera, 253 F.Supp.2d at 746. Notably, Hernandez alleges
precisely the opposite, namely that despite his many pleas and letters, a resolution on this matter was never
reached. Thus, he cannot be deemed to have informally exhausted his remedies.
5 Moreover, although Hernandez does not make such an argument, to the extent that he could argue that his
noncompliance with the IGP requirements was due to his transfer from Downstate back to Coxsackie the
day after the incident, that argument is unavailing. First, “New York's Inmate Grievance Program contains
provisions that allow prisoners to pursue grievances even after their transfer out of the facility where their
claims arose.” Timmons v. Pereiro, No. 00 Civ. 1278(LAP), 2003 WL 179769, at *2 (S.D.N.Y. Jan.27, 2003);
see also Delio v. Morgan, No. 00 Civ. 7167(LTS), 2003 WL 21373168, at *3 (S.D.N.Y. Jun.13, 2003) (rejecting
transfer argument and relying on 7 N.Y.C.R.R. § 701.3(k)(2)). Finally, such an argument would indirectly raise
a futility argument, and it is well-settled that futility of the administrative remedy is not an excuse for failure to
exhaust. Santiago v. Meinsen, 89 F.Supp.2d 435, 440-41 (S.D.N.Y.2000); accord Paulino v. Amicucci, No.
02 Civ. 208(LAP), 2003 WL 174303, at *3 (S.D.N.Y. Jan.27, 2003).
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Hudson v. Artuz, Not Reported in F.Supp.2d (1998)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
1998 WL 832708
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Theodore HUDSON, Plaintiff,
v.
Christopher ARTUZ, Warden Philip
Coombe, Commissioner Sergeant
Ambrosino Doctor Manion Defendants.
No. 95 CIV. 4768(JSR).
|
Nov. 30, 1998.
Attorneys and Law Firms
Mr. Theodore Hudson, Great Meadow Correctional Facility,
Comstock.
Alfred A. Delicata, Esq., Assistant Attorney General, New
York.
MEMORANDUM AND ORDER
BUCHWALD, Magistrate J.
*1 Plaintiff Theodore Hudson filed this pro se action
pursuant to 42 U.S.C. § 1983 on April 26, 1995. Plaintiff's
complaint alleges defendants violated his constitutional rights
while he was an inmate at Green Haven Correctional
Facility. 1 Plaintiff's complaint was dismissed sua sponte by
Judge Thomas P. Griesa on June 26, 1995 pursuant to 28
U.S.C. § 1915(d). On September 26, 1995, the Second Circuit
Court of Appeals vacated the judgment and remanded the case
to the district court for further proceedings.
The case was reassigned to Judge Barbara S. Jones on
January 31, 1996. Defendants moved to dismiss the complaint
pursuant to Fed.R.Civ.P. 12(c) on November 25, 1996.
Thereafter, the case was reassigned to Judge Jed S. Rakoff
on February 26, 1997. On February 26, 1998, Judge Rakoff
granted defendants' motion to dismiss, but vacated the
judgment on April 10, 1998 in response to plaintiff's motion
for reconsideration in which plaintiff claimed that he never
received defendants' motion to dismiss.
By Judge Rakoff's Order dated April 14, 1998, this case was
referred to me for general pretrial purposes and for a Report
and Recommendation on any dispositive motion. Presently
pending is defendants' renewed motion to dismiss. Plaintiff
filed a reply on July 6, 1998. For the reasons discussed
below, plaintiff's complaint is dismissed without prejudice,
and plaintiff is granted leave to replead within thirty (30) days
of the date of the entry of this order.
FACTS
Plaintiff alleges that he was assaulted by four inmates in the
Green Haven Correctional Facility mess hall on March 14,
1995. (Complaint at 4.) He alleges that he was struck with
a pipe and a fork while in the “pop room” between 6:00
p.m. and 6:30 p.m. (Complaint at 4–5.) Plaintiff contends
that the attack left him with 11 stitches in his head, chronic
headaches, nightmares, and pain in his arm, shoulder, and
back. (Id.) Plaintiff also states that Sergeant Ambrosino
“failed to secure [the] area and separate” him from his
attackers. (Reply at 5.) Plaintiff's claim against Warden Artuz
is that he “fail [sic] to qualify as warden.” (Complaint at
4.) Plaintiff names Commissioner Coombes as a defendant,
alleging Coombes “fail [sic] to appoint a qualified warden
over security.” (Amended Complaint at 5.) Plaintiff further
alleges that Dr. Manion refused to give him pain medication.
(Complaint at 5.) Plaintiff seeks to “prevent violent crimes”
and demands $6,000,000 in damages. (Amended Complaint
at 5.)
Defendants moved to dismiss the complaint, arguing that: (1)
the Eleventh Amendment bars suit against state defendants
for money damages; (2) the plaintiff's allegations fail to state
a claim for a constitutional violation; (3) the defendants are
qualifiedly immune from damages; and (4) plaintiff must
exhaust his administrative remedies before bringing this suit.
DISCUSSION
I find that plaintiff's complaint runs afoul of Rules 8 and
10 of the Federal Rules of Civil Procedure and dismiss the
complaint without prejudice and with leave to amend. Federal
Rule 8 requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The purpose of this Rule “is to
give fair notice of the claim being asserted so as to permit the
adverse party the opportunity to file a responsive answer [and]
prepare an adequate defense.” Powell v. Marine Midland
Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (quoting Brown v.
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Califano, 75 F.R.D. 497, 498 (D.D.C.1977)); see Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir.1988) (stating that the
“principal function of pleadings under the Federal Rules is to
give the adverse party fair notice of the claim asserted so as
to enable him to answer and prepare for trial”).
*2 Rule 10 of the Federal Rules of Civil Procedure requires,
inter alia, that the allegations in a plaintiff's complaint be
made in numbered paragraphs, each of which should recite,
as far as practicable, only a single set of circumstances.
Moore's Federal Practice, Vol. 2A, ¶ 10.03 (1996). Rule
10 also requires that each claim upon which plaintiff seeks
relief be founded upon a separate transaction or occurrence.
Id. 2 The purpose of Rule 10 is to “provide an easy mode
of identification for referring to a particular paragraph in a
prior pleading.” Sandler v. Capanna, 92 Civ. 4838, 1992 WL
392597, *3 (E.D.Pa. Dec.17, 1992) (citing 5 C. Wright &
A. Miller, Federal Practice and Procedure, § 1323 at 735
(1990)).
A complaint that fails to comply with these pleading rules
“presents far too heavy a burden in terms of defendants'
duty to shape a comprehensive defense and provides no
meaningful basis for the Court to assess the sufficiency of”
a plaintiff's claims. Gonzales v. Wing, 167 F.R.D. 352, 355
(N.D.N.Y.1996). It may therefore be dismissed by the court.
Id.; see also Salahuddin v. Cuomo, 861 F.2d at 42 (“When
a complaint does not comply with the requirement that it
be short and plain, the court has the power to, on its own
initiative, ... dismiss the complaint”). Dismissal, however, is
“usually reserved for those cases in which the complaint is
so confused, ambiguous, vague, or otherwise unintelligible
that its true substance, if any, is well disguised.” Id. In those
cases in which the court dismisses a pro se complaint for
failure to comply with Rule 8, it should give the plaintiff leave
to amend when the complaint states a claim that is on its
face nonfrivolous. Simmons v. Abruzzo, 49 F.3d 83, 87 (2d
Cir.1995).
In determining whether a nonfrivolous claim is stated, the
complaint's allegations are taken as true, and the “complaint
should not be dismissed for failure to state a claim unless
it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.” Conley v.. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957). The complaint of a pro se litigant is to
be liberally construed in his favor when determining whether
he has stated a meritorious claim. See Haines v. Kerner, 404
U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Even if it
is difficult to determine the actual substance of the plaintiff's
complaint, outright dismissal without leave to amend the
complaint is generally disfavored as an abuse of discretion.
See Salahuddin, 861 F.2d at 42–42; see also Doe v. City of
New York, No. 97 Civ. 420, 1997 WL 124214, at *2 (E.D.N.Y.
Mar.12, 1997).
Here, plaintiff's pro se complaint fails to satisfy the
requirements of Federal Rules 8 and 10. The complaint is
often illegible and largely incomprehensible, scattering what
appear to be allegations specific to plaintiff within a forest
of headnotes copied from prior opinions. Defendants have
answered with a boilerplate brief, which is perhaps all a
defendant can do when faced with such a complaint. The
Court is left with an insurmountable burden in attempting to
make a reasoned ruling on such muddled pleadings.
*3 Although plaintiff's complaint is substantially
incomprehensible, it appears to plead at least some claims
that cannot be termed frivolous on their face. For example,
plaintiff clearly alleges that inmates assaulted him and that
Dr. Manion refused to provide him medical attention. He also
appears to assert that Sergeant Ambrosino failed to protect
him from the attack or take steps to prevent future attacks.
(Plaintiff's Reply at 5). It is well established that an inmate's
constitutional rights are violated when prison officials act
with deliberate indifference to his safety or with intent to
cause him harm. Hendricks v. Coughlin, 942 F.2d 109 (2d
Cir.1991). It is similarly well established that an inmate's
constitutional rights are violated when a prison doctor denies
his request for medical care with deliberate indifference to
the inmate's serious medical needs. Estelle v. Gamble, 429
U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hathaway v.
Coughlin, 37 F.3d 63 (2d Cir.1994), cert. denied, 513 U.S.
1154, 115 S.Ct. 1108, 130 L.Ed.2d 1074 (1995). Although
plaintiff provides few facts to support his allegations, I
disagree with defendants' assertion that outright dismissal is
appropriate because it “appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief.” Defendant's Memorandum at 5 (quoting
Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d
80 (1957)).
Because plaintiff's complaint does not comply with Rules 8
and 10, it is hereby dismissed without prejudice, and plaintiff
is granted leave to replead within thirty (30) days of the date
of the entry of this Order. In drafting his second amended
complaint, plaintiff is directed to number each paragraph and
order the paragraphs chronologically, so that each incident in
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which he alleges a constitutional violation is described in the
order that it occurred. Plaintiff is also directed to specifically
describe the actions of each defendant that caused plaintiff
harm, and to do so in separate paragraphs for each defendant.
Plaintiff's complaint shall contain the facts specific to the
incidents plaintiff alleges occurred, and not any facts relating
to any case that has been decided previously by a court of law.
Plaintiff's complaint shall also contain a clear statement of the
relief he seeks in addition to monetary damages.
CONCLUSION
For the reasons set forth above, plaintiff's complaint is
dismissed without prejudice, and plaintiff is granted leave to
replead within thirty (30) days of the date of the entry of this
Order.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 1998 WL 832708
Footnotes
1 Plaintiff is presently incarcerated at Sullivan Correctional Facility.
2 Rule 10 states:
(b) Paragraphs; Separate Statements. All averments of claim or defense shall be made in numbered
paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set
of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim
founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a
separate count or defense whenever a separation facilitates the clear presentation of the matters set forth.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Jackson v. Jackson, Not Reported in Fed. Supp. (2021)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 981849
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Robert JACKSON, Plaintiff,
v.
C.O. Angela JACKSON, et al., Defendants.
16-CV-08516 (PMH)
|
Signed 03/16/2021
Attorneys and Law Firms
Robert Jackson, Beacon, NY, pro se.
Amanda Yoon, NYS Office of the Attorney General, New
York, NY, Rebecca Lynn Johannesen, Colorado Department
of Law, Denver, CO, for Defendants.
MEMORANDUM OPINION AND ORDER
PHILIP M. HALPERN, United States District Judge:
*1 Plaintiff Robert Jackson (“Plaintiff”), proceeding pro se
and in forma pauperis, brings this action under 42 U.S.C.
§ 1983 against Correction Officers Angela Jackson, M.
Walker, and J. James (collectively, “Defendants”). (Doc. 2,
“Compl.”). Specifically, Plaintiff alleges that in June 2015
—while incarcerated at Sing Sing Correctional Facility in
Ossining, New York (“Sing Sing”)—Defendants violated his
constitutional rights by: (1) using excessive force against him,
in violation of the Eighth Amendment; and (2) filing a false
internal complaint against him, in violation of the Fourteenth
Amendment. (See generally id.).
On July 10, 2017, Defendants moved under Federal Rule of
Civil Procedure 12(b)(6) to dismiss Plaintiff's due process
claim along with all claims for monetary damages against
them in their official capacities. (Doc. 16). By Opinion
& Order dated April 20, 2018, Judge Román granted
Defendants’ motion and granted Plaintiff leave “to file an
Amended Complaint ... on or before June 19, 2018.” (Doc.
19 at 8). Despite securing an extension of the time within
which to file his amended pleading, Plaintiff failed to do
so. Consequently, the only claim remaining in this action is
one for excessive force against Defendants in their individual
capacities.
Defendants filed an Answer on August 30, 2018 (Doc. 22)
and, with leave of Court, filed an Amended Answer on
October 2, 2019. (Doc. 29, “Am. Ans.”). Shortly thereafter,
in an Order issued on October 22, 2019, Judge Román
“waive[d] the Initial Pre-trial Conference and direct[ed] the
parties to confer and complete a Case Management Plan and
Scheduling Order....” (Doc. 30). Although Plaintiff filed a
proposed discovery plan on November 19, 2019 (Doc. 32),
Defendants filed a letter the following day to request both
an extension of time within which to submit a proposed
discovery schedule and a pre-motion conference to discuss an
anticipated motion for summary judgment on the sole issue
of administrative exhaustion (Doc. 31). There was no further
activity on the docket in this case until it was reassigned to
this Court in April 2020. 1
On April 13, 2020, the Court granted Defendants’ request,
set a briefing schedule for the extant summary judgment
motion, and directed Defendants to mail a copy of that Order
to Plaintiff; Defendants filed an affidavit of service the same
day. (Doc. 33; Doc. 34). Approximately one month later, on
May 6, 2020, Defendants filed a letter requesting an extension
of the briefing schedule. (Doc. 36). In that letter, Defendants
noted also that upon “conferr[ing] with the New York State
Division of Parole,” they had learned that Plaintiff had been
released from custody and was believed to be residing at an
address in New York, New York. (Id.). In an endorsement
dated May 7, 2020, the Court granted Defendants’ request to
extend the briefing schedule and directed Defendants to serve
a copy of that Order on Plaintiff; Defendants filed an affidavit
of service the next day indicating that the Order had been
mailed to Plaintiff's address in New York City. (Doc. 37; Doc.
38).
*2 Defendants filed their motion for summary judgment on
June 15, 2020. (Doc. 39; Doc. 40, “Def. Br.”). On July 23,
2020, Defendants filed a letter noting that Plaintiff's time to
oppose the pending motion had passed and requesting that
the Court consider the motion unopposed. (Doc. 44). The
Court endorsed the letter on July 24, 2020, extended Plaintiff's
time to file an opposition to August 24, 2020 sua sponte, and
advised that “[i]f plaintiff fails to file his opposition by August
24, 2020, the motion will be deemed fully submitted and
unopposed.” (Doc. 45). The Court also instructed Defendants
to serve a copy of that Order on Plaintiffs (id.); Defendants
filed an affidavit of service that reflected mailings to both
Fishkill and the address in New York City shortly thereafter.
(Doc. 46). The Court has received no communications from
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Jackson v. Jackson, Not Reported in Fed. Supp. (2021)
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Plaintiff since November 2019 and, as such, considers the
motion fully submitted and unopposed.
For the reasons set forth below, Defendants’ motion for
summary judgment is GRANTED.
BACKGROUND
The facts, as recited below, are taken from the Complaint,
Defendants’ Local Civil Rule 56.1 Statement (Doc. 42,
“56.1 Stmt.”), and the admissible evidence submitted by the
parties. 2
I. The Underlying Incident
Plaintiff's factual allegations, in toto, are as follows:
After an arguement [sic] with C.O.
Jackson in the messhall[,] I was taken
to the bridge area where the defendants
beat me into a seizure, then fabricated
a misbehavior report to justify their
actions.
(Compl. at 4). Plaintiff maintains that this incident occurred
on June 4, 2015. (Id.).
II. Plaintiff's Grievance
Plaintiff filed the Grievance on June 17, 2015. (Quick Aff.
¶ 9; Quick Ex. B). Therein, Plaintiff complained that as he
“was walking out [of] the messhall” on June 4, 2015, “C.O.
Ms. Jackson and ... other[s] ... beat me down....” (Quick
Ex. B). On August 14, 2015, following an investigation into
Plaintiff's complaint, the Sing Sing Superintendent issued a
written decision denying the Grievance. (Quick Aff. ¶ 11;
Quick Ex. C). In full, the Superintendent's written decision
reads as follows:
Grievant claims staff harassment.
The grievant was interviewed by a supervisor. The grievant
had nothing further to add to his original complaint and
provided no witnesses.
Staff involved were interviewed and provided a written
report denying the allegations of wrongdoing or harassing
the grievant.
Based on the investigation conducted, insufficient evidence
could be found to substantiate the grievant [sic] allegations.
Grievance is denied.
(Quick Ex. C). The Superintendent's decision advised that
Plaintiff had seven days to appeal the determination to CORC,
should he choose to do so (id.); however, there is no record
that Plaintiff ever appealed to CORC (Quick Aff. ¶ 12; Seguin
Aff. ¶¶ 6-7; Seguin Ex. B).
STANDARD OF REVIEW
*3 Pursuant to Federal Rule of Civil Procedure 56, a court
“shall grant summary judgment if the movant shows that 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 is genuinely in dispute ‘if the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’ ” Liverpool v. Davis, 442 F. Supp.
3d 714, 722 (S.D.N.Y. 2020) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). “ ‘Factual disputes
that are irrelevant or unnecessary’ are not material and thus
cannot preclude summary judgment.” Sood v. Rampersaud,
No. 12-CV-5486, 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17,
2013) (quoting Anderson, 477 U.S. at 248). The Court's duty,
when determining whether summary judgment is appropriate,
is “not to resolve disputed issues of fact but to assess whether
there are any factual issues to be tried.” Id. (quoting Wilson
v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed,
the Court's function is not to determine the truth or weigh
the evidence; the task is material issue spotting, not material
issue determining. Therefore, “where there is an absence of
sufficient proof as to one essential element of a claim, any
factual disputes with respect to other elements of the claim are
immaterial....” Bellotto v. Cty. of Orange, 248 F. App'x 232,
234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d
263, 281 (2d Cir. 2006)). Claims simply cannot proceed in the
absence of sufficient proof as to an essential element.
“It is the movant's burden to show that no genuine factual
dispute exists,” Vermont Teddy Bear Co. v. 1-800 Beargram
Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970)), and a court must
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“resolve all ambiguities and draw all reasonable inferences in
the non-movant's favor.” Id. (citing Giannullo v. City of New
York, 322 F.3d 139, 140 (2d Cir. 2003)). Once the movant
has met its burden, the non-movant “must come forward
with specific facts showing that there is a genuine issue for
trial.” Liverpool, 442 F. Supp. 3d at 722 (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)). The non-movant cannot defeat a summary judgment
motion by relying on “mere speculation or conjecture as to the
true nature of the facts....” Id. (quoting Knight v. U.S. Fire Ins.
Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, “[i]f there is any
evidence from which a reasonable inference could be drawn
in favor of the opposing party on the issue on which summary
judgment is sought, summary judgment is improper.” Sood,
2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford
v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir.
2004)).
Should there be no genuine issue of material fact, the movant
must also establish its “entitlement to judgment as a matter
of law.” In re Davis New York Venture Fund Fee Litig., 805
F. App'x 79, 80 (2d Cir. 2020) (quoting FIH, LLC v. Found.
Capital Partners LLC, 920 F.3d 134, 140 (2d Cir. 2019)).
Stated simply, the movant must establish that the law favors
the judgment sought. Gonzalez v. Rutherford Corp., 881 F.
Supp. 829, 834 (E.D.N.Y. 1995) (explaining “that summary
judgment is appropriate only when ... law supports the moving
party”); Linares v. City of White Plains, 773 F. Supp. 559, 560
(S.D.N.Y. 1991) (summary judgment is appropriate when “the
law so favors the moving party that entry of judgment in favor
of the movant ... is proper”). This standard applies equally to
claims for relief and affirmative defenses. Giordano v. Market
Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010) (“The same standard
applies whether summary judgment is granted on the merits
or on an affirmative defense....”). 3
*4 The Court is, of course, mindful that “[p]ro se litigants
are afforded a special solicitude,” which includes reading
their filings “to raise the strongest arguments they suggest.”
Mortimer v. City of New York, No. 15-CV-7186, 2018 WL
1605982, at *9 (S.D.N.Y. Mar. 29, 2018) (internal quotation
marks omitted). “It is through this lens of leniency towards
pro se litigants that this Court must consider a defendant's
motion for summary judgment against a pro se plaintiff,”
Adams v. George, No. 18-CV-2630, 2020 WL 5504472, at
*5 (S.D.N.Y. Sept. 8, 2020), but the mere fact that a litigant
is pro se “does not relieve the plaintiff of his duty to meet
the requirements necessary to defeat a motion for summary
judgment,” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50
(2d Cir. 2003) (internal quotation marks omitted). Where, as
here, a pro se litigant fails to oppose a motion for summary
judgment, the motion may be granted as unopposed only “if:
(1) the plaintiff has received adequate notice that failure to file
any opposition may result in dismissal of the case; and (2) the
Court is satisfied that the facts as to which there is no genuine
dispute show that the moving party is entitled to judgment
as a matter of law.” McNair v. Ponte, No. 17-CV-2976, 2020
WL 3402815, at *3 (S.D.N.Y. June 18, 2020) (quoting Warren
v. Chem. Bank, No. 96-CV-6075, 1999 WL 1256249, at *2
(S.D.N.Y. Dec. 22, 1999)). 4
ANALYSIS
The Prison Litigation Reform Act (“PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as available are
exhausted.” 42 U.S.C. § 1997e(a). This provision “applies to
all inmate suits about prison life, whether they involve general
circumstances or particular episodes,” Hernández v. Coffey,
582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle,
534 U.S. 516, 532 (2002)), and it is “ ‘mandatory’: [a]n inmate
‘shall’ bring ‘no action’ (or said more conversationally,
may not bring any action) absent exhaustion of available
administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856
(2016) (citation omitted). “Moreover, the PLRA ‘requires
proper exhaustion, which means using all steps that the prison
grievance system holds out.’ ” Ayala-Rosario v. Westchester
Cty., No. 19-CV-3052, 2020 WL 3618190, at *4 (S.D.N.Y.
July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118,
122 (2d Cir. 2016)). This “means that ‘prisoners must
complete the administrative review process in accordance
with the applicable procedural rules—rules that are defined
not by the PLRA, but by the prison grievance process
itself.’ ” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL
1082590, at *6 (S.D.N.Y. Mar. 6, 2020) (quoting Johnson v.
Killian, 680 F.3d 234, 238 (2d Cir. 2012)). Accordingly, the
Court looks to the process available to Plaintiff. See Dinkins
v. New York, No. 19-CV-08447, 2020 WL 5659554, at *6
(S.D.N.Y. Sept. 23, 2020).
There are three levels of review for inmate grievances at
Sing Sing. See generally Amador v. Andrews, 655 F.3d 89,
96-97 (2d Cir. 2011) (outlining the three-step process). First,
a grievance is reviewed by the Inmate Grievance Resolution
Committee (“IGRC”), a facility-level body consisting of
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inmates and facility staff members. (Quick Ex. A §§
701.4, 701.5(a)-(b); Senguin Ex. A §§ 701.4, 701.5(a)-
(b)). Second, should the inmate be dissatisfied with the
IGRC's determination, he may appeal that decision to the
Superintendent. (Quick Ex. A § 701.5(c); Senguin Ex. A
§ 701.5(c)). Finally, if the Superintendent's conclusions are
unfavorable, the inmate may appeal that decision to CORC.
(Quick Ex. A § 701.5(d); Senguin Ex. A § 701.5(d)).
However, when a grievance concerns staff harassment,
DOCCS procedures provide for an expedited review that
allows for the complaint to bypass IGRC review and proceed
before the Superintendent in the first instance. (See Quick Ex.
A § 701.8; Senguin Ex. A § 701.8). Both the Superintendent
and CORC are required to “date stamp all” grievances or
appeals forwarded to them for review (Quick Ex. A §§
701.5(c)(3), 701.5(d)(3)(i); Senguin Ex. A §§ 701.5(c)(3),
701.5(d)(3)(i)) and require entities to maintain files “for
the current calendar year plus the previous four calendar
years” (Quick Ex. A § 701.6(k)(3); Senguin Ex. A § 701.6(k)
(3)).
*5 Quick represents, as custodian of records maintained by
the IGP at Sing Sing, that grievances “are collected from
the IGRC mailbox and processed” daily, in accordance with
DOCCS procedures. (Quick Aff. ¶ 5). Quick's records reveal
that Plaintiff filed the Grievance on June 17, 2015, that the
Grievance was forwarded directly to the Superintendent as
one concerning staff harassment, and that the Superintendent
performed an investigation and issued a written decision
denying the Grievance on August 14, 2015. (Id. ¶¶ 9-11;
Quick Ex. B). However, both Quick and Seguin represent
affirmatively that they have no record of Plaintiff taking
the final step of appealing the Superintendent's decision to
CORC. (Quick Aff. ¶12; Seguin Aff. ¶¶ 6-7).
Even while granting Plaintiff—who filed nothing in
opposition to this motion, and, in fact, has filed nothing in
this case at all since November 2019 (see Doc. 32)—every
conceivable benefit of the doubt to which a pro se litigant
is entitled, there is no genuine issue of material fact on the
instant motion. Consequently, summary judgment is proper
here because: (1) Defendants established that Plaintiff failed
to exhaust his administrative remedies and, as such, also
their entitlement to summary judgment on the affirmative
defense of Plaintiff's failure to exhaust his administrative
remedies as required by the PLRA; and (2) Plaintiff was
warned that failure to file an opposition would result in the
Court concluding that the motion was unopposed. 5
CONCLUSION
Based upon the foregoing, the motion for summary judgment
is GRANTED.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 981849
Footnotes
1 There are two docket entries reflecting reassignment of this matter from Judge Román to this Court on
different dates. (See Apr. 3, 2020 Entry; Apr. 13, 2020 Entry).
2 In support of the instant motion, defense counsel filed a Declaration annexing two affidavits (with exhibits)
for the Court's consideration. (Doc. 41). The first affidavit is from Quandera T. Quick (“Quick”), the Inmate
Grievance Program (“IGP”) Supervisor at Sing Sing. (Doc. 41-1, “Quick Aff.” ¶ 1). This affidavit attaches
as exhibits copies of: (1) New York State Department of Corrections and Community Supervision Directive
(“DOCCS”) No. 4040 (id. 5-21, “Quick Ex. A”); (2) Plaintiff's June 4, 2015 Grievance (“Grievance”) (id. at
22-23, “Quick Ex. B”); and (3) the written decision issued by Michael Capra, Sing Sing's Superintendent, on
August 14, 2015 (id. at 24-25, “Quick Ex. C”). The second affidavit is from Rachael Seguin (“Seguin”), the
Assistant Director of the IGP for DOCCS and custodian of records for the Central Office Review Committee
(“CORC”). (Doc. 41-2, “Seguin Aff.”). This affidavit attaches as exhibits copies of: (1) DOCCS Directive No.
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4040 (id. at 4-20, “Seguin Ex. A”); and (2) the results of a search for appeals filed with the CORC (id. at
21-23, “Seguin Ex. B”).
3 “[T]he failure to exhaust administrative remedies in compliance with the [Prison Litigation Reform Act] is an
affirmative defense” and it “may be waived” by a defendant who fails to raise it. Banks v. Cty. of Westchester,
168 F. Supp. 3d 682, 693 n.3 (S.D.N.Y. 2016) (internal quotation marks omitted). Here, Defendants’ Fourth
Affirmative Defense was failure to comply with 42 U.S.C. § 1997e. (Am. Ans. ¶ 14).
4 Given the Court's conclusion that there is no genuine issue of material fact as to exhaustion, it does not need
to reach Defendants’ request for an evidentiary hearing should the Court find otherwise.
5 Even if the Court did not grant Defendants’ motion for summary judgment, it would dismiss the action with
prejudice under Federal Rule of Civil Procedure 41(b) as a result of Plaintiff's failure to prosecute this action.
Indeed, Plaintiff has not filed anything in this case since he filed a proposed discovery schedule more than
a year ago.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Jackson v. Moore, Not Reported in Fed. Supp. (2023)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2023 WL 4710869
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Dumar JACKSON, Plaintiff,
v.
N. MOORE, Defendant.
9:21-CV-1001 (GTS/ATB)
|
Signed April 14, 2023
Attorneys and Law Firms
DUMAR JACKSON, Plaintiff, pro se.
RACHAEL S. OUIMET, Assistant Attorney General, for
Defendant.
REPORT-RECOMMENDATION
ANDREW T. BAXTER, United States Magistrate Judge
*1 In this pro se civil rights action, plaintiff alleges
that the defendant violated his Eighth Amendment rights
when he failed to protect plaintiff from another inmate.
Presently before the court is defendant Correctional Officer
(“C.O.”) Moore's motion for summary judgment. (Dkt. No.
16). This matter has been referred to me for Report and
Recommendation by United States District Judge Glenn T.
Suddaby, pursuant to 28 U.S.C. § 636(b) and Local Rule
N.D.N.Y. 72.3(c). For the reasons set forth below, this court
will recommend granting defendant's motion and dismissing
the complaint in its entirety.
I. Background
A. Procedural History
In this civil rights action, plaintiff alleges a constitutional
violation occurred while he was incarcerated at Clinton
Correctional Facility (“Clinton C.F.”), in the custody
of the New York State Department of Corrections and
Community Supervision (“DOCCS”). Plaintiff filed the
original complaint on September 10, 2021. (Dkt. No. 1). On
October 25, 2021, the court issued a Decision and Order
granting plaintiff's application to proceed in the action in
forma pauperis (“IFP”), and conditionally dismissing the
original complaint because it failed to state a claim upon
which relief may be granted pursuant to 28 U.S.C. § 1915 and
28 U.S.C. § 1915A. (Dkt. No. 4). The court granted plaintiff
leave to amend his complaint to “correct[ ] the pleading
defects” identified with his original complaint. (Id. at 10).
Plaintiff availed himself of the opportunity to amend, and
the court received plaintiff's amended pleading on or about
November 18, 2021. (Dkt. No. 6, “Am. Compl.”).
On February 9, 2022, I determined, pursuant to my initial
review of the complaint, that plaintiff's amended complaint
was accepted for filing and that the only active defendant was
C.O. Moore. (Dkt. No. 7 at 3). C.O. Moore filed an answer
to the amended complaint on April 14, 2022. (Dkt. No. 12).
On December 15, 2022, defendant filed this instant motion
for summary judgment (Dkt. No. 16), to which plaintiff
responded on February 16, 2023 (Dkt. No. 20).
B. Summary of Complaint
The complaint alleges that on September 6, 2018, while
plaintiff was confined in Clinton C.F., he was attacked by
another inmate when they were released from their keep-
lock cells at the same time. (Am. Comp. at 4). Although
facility policies and procedures prohibited C.O. Moore from
releasing the other inmate “until [plaintiff] was ... back in
general population,” C.O. Moore nevertheless released both
inmates simultaneously, knowing that plaintiff did not have
an escort at the time. Id. C.O. Moore also “knew there was a
race war going on in [Clinton C.F.] with the bloods and the
Spanish gangs and let [plaintiff] out of [his] cell with a known
gang member posed [sic] a substantial risk of serious harm
to [him].” Id. Although C.O. Moore observed the inmate run
into plaintiff's cell and attack him, C.O. Moore “did nothing
to prevent it from happening.” Plaintiff was returned to keep-
lock after the incident and remained there for an additional 70
days, until November 15, 2018. (Dkt. No. 16-3, Pl.’s Dep. at
18, 27, 79, 88, 95; Internal Movement History, Dkt. No. 20-1
at 31).
II. Summary Judgment
*2 Summary judgment is appropriate where there exists no
genuine issue of material fact and, based on the undisputed
facts, the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263,
272-73 (2d Cir. 2006). Rule 56(b) provides that a party may
file a motion for summary judgment “at any time until 30
days after the close of all discovery.” Fed. R. Civ. P. 56(b).
Thus, a party may move for summary judgment in lieu of
an answer. See, e.g., Anderson v. Rochester-Genesee Reg'l
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Transp. Auth., 337 F.3d 201, 202 (2d Cir. 2003); Crenshaw
v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010); Riehl v.
Martin, No. 9:13-CV-439 (GLS/TWD), 2014 WL 1289601,
at *1-2 (N.D.N.Y. Mar. 31, 2014).
The moving party has the burden to show the absence of
disputed material facts by informing the court of portions
of pleadings, depositions, and affidavits which support the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party satisfies its burden, the nonmoving party
must move forward with specific facts showing that there is
a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at
273. In that context, the nonmoving party must do more than
“simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). However, in determining
whether there is a genuine issue of material fact, a court must
resolve all ambiguities, and draw all inferences, against the
movant. See United States v. Diebold, Inc., 369 U.S. 654,
655 (1962); Salahuddin, 467 F.3d at 272. “Only disputes over
[‘material’] facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment.” Anderson v. Liberty Lobby, 477 U.S.
242, 248 (1986). It must be apparent that no rational finder of
fact could find in favor of the non-moving party for a court
to grant a motion for summary judgment. Gallo v. Prudential
Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994).
While courts are required to give due deference to a plaintiff's
pro se status, that status “does not relieve plaintiff of his
duty to meet the requirements necessary to defeat a motion
for summary judgment.” Jorgensen v. Epic/Sony Records,
351 F.3d 46, 50 (2d Cir. 2003). Where a party has failed
to respond to the movant's statement of material facts as
required by Local Rule 7.1(a)(3), the facts in the movant's
statement will be accepted as true (1) to the extent they are
supported by evidence in the record, and (2) the non-movant,
if proceeding pro se, has been specifically advised of the
possible consequences of failing to respond to the motion.
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996).
Although plaintiff received proper notice of his obligation
to respond to defendant's summary judgment motion in
accordance with Local Rules, the plaintiff did not file a
Statement of Material Facts that addressed many of the factual
allegations in defendant's Statement, as required by Local
Rule 7.1(a)(3). 1 Consequently, the court may accept the
properly supported facts contained in the defendants’ Rule
7.1 statement (Dkt. No. 16-2) as true for purposes of this
motion. See Govan v. Campbell, 289 F. Supp. 2d 289, 295-96
(N.D.N.Y. 2003).
III. Exhaustion of Administrative Remedies
A. Legal Standards
*3 The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C.
§ 1997e(a), requires an inmate to exhaust all available
administrative remedies prior to bringing a federal civil rights
action. The exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances
or particular episodes, and regardless of the subject matter of
the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir.
2004), (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)),
abrogated on other grounds, Ross v. Blake, 578 U.S. 632
(2016). Inmates must exhaust their administrative remedies
even if they are seeking only money damages that are not
available in prison administrative proceedings. Id. at 675.
In order to properly exhaust an inmate's administrative
remedies, the inmate must complete the administrative review
process in accordance with the applicable state rules. Jones
v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford
v. Ngo, 548 U.S. 81 (2006)). In Woodford, the court
held that “proper” exhaustion means that the inmate must
complete the administrative review process in accordance
with the applicable procedural rules, including deadlines, as
a prerequisite to bringing suit in federal court. Woodford, 548
U.S. at 90-103.
The grievance procedure in New York is a three-tiered
process. The inmate must first file a grievance with the
Incarcerated 2 Grievance Resolution Committee (“IGRC”).
N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and
(b). An adverse decision of the IGRC may be appealed to
the Superintendent of the Facility. Id. § 701.5(c). Adverse
decisions at the Superintendent's level may be appealed
to the Central Office Review Committee (“CORC”). Id. §
701.5(d). The court also notes that the regulations governing
the Incarcerated 3 Grievance Program (“IGP”) encourage
the inmate to “resolve his/her complaints through the
guidance and counseling unit, the program area directly
affected, or other existing channels (informal or formal)
prior to submitting a grievance.” Id. § 701.3(a) (Inmate's
Responsibility). There is also a special section for complaints
of harassment. Id. § 701.8. Complaints of harassment are
handled by an expedited procedure which provides that such
grievances are forwarded directly to the Superintendent of
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the facility, after which the inmate must appeal any negative
determination to the CORC. Id. §§ 701.8(h) and (I), 701.5.
Prior to Ross v. Blake, supra, the Second Circuit utilized
a three-part inquiry to determine whether an inmate had
properly exhausted his administrative remedies. See Brownell
v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing
Hemphill v. State of New York, 380 F.3d 680, 686 (2d
Cir. 2004)). The Hemphill inquiry asked (1) whether the
administrative remedies were available to the inmate; (2)
whether defendants’ own actions inhibiting exhaustion estops
them from raising the defense; and (3) whether “special
circumstances” justify the inmate's failure to comply with the
exhaustion requirement. Id.
In Ross, the Supreme Court made it clear that courts
may not excuse a prisoner's failure to exhaust because of
“special circumstances.” Ross v. Blake, 578 U.S. 632, 640
(2016). “[M]andatory exhaustion statutes like the PLRA
establish mandatory exhaustion regimes, foreclosing judicial
discretion.” Riles v. Buchanan, 656 F. App'x 577, 580 (2d Cir.
2016) (quoting Ross, 578 U.S. at 639). Although Ross has
eliminated the “special circumstances” exception, the other
two factors in Hemphill – availability and estoppel – are still
valid. The court in Ross referred to “availability” as a “textual
exception” to mandatory exhaustion, and “estoppel” has
become one of the three factors in determining availability.
Ross, 578 U.S. at 642. Courts evaluating whether an inmate
has exhausted his or her administrative remedies must also
consider whether those remedies were “available” to the
inmate. Id.; see also Riles, 2016 WL 4572321 at *2.
B. Analysis
*4 Defendant C.O. Moore argues that plaintiff's failure-to-
protect claim is subject to dismissal, for failure to exhaust
administrative remedies, because plaintiff did not file an
initial grievance prior to bringing suit, nor did he appeal
the denial of any grievance concerning this claim to CORC.
(Dkt. No. 16-1, Defendant's Memorandum of Law at 14).
In support of his position, defendant has attached to his
motion papers the sworn declarations of Rachael Seguin
(“Seguin Decl.”) (Dkt. No. 16-7), the Director of the IGP
for DOCCS, and Christine Gregory, the IGP Supervisor
at Clinton C.F. (“Gregory Decl.”) (Dkt. No. 16-6). These
declarations, and the evidence attached as exhibits thereto,
indicate that plaintiff neither filed an initial grievance related
to his claim that C.O. Moore failed to protect him from
another inmate on September 6, 2018, nor did plaintiff submit
an appeal to CORC. (See Gregory Decl. ¶¶ 16-20; Seguin
Decl. ¶¶ 12-14, Ex. A).
In opposition to defendant's motion, plaintiff alleges that,
while confined in his keep-lock cell, he attempted to file a
grievance relating to the incident with C.O. Moore by putting
a sealed letter on the gate for mail pickup. (Dkt. No. 20 at 2-3;
Pl.’s Dep. at 87-89). Plaintiff testified that he remembered the
grievance being picked up by an unnamed officer, but does
not remember the exact day he mailed the grievance. 4 (Dkt.
No. 16-3, Pl.’s Dep. at 87-89, 93). Plaintiff speculates that an
unnamed officer on duty threw his grievance away. (Dkt. No.
20 at 2-3; Pl.’s Dep. at 87-89)
Plaintiff acknowledged that he never followed up with respect
to his grievance for the 70 days after the incident when he was
confined on keeplock; but he alleges that he asked sergeants,
officers, and counselors about the status of his grievance and
they told plaintiff “they'll get back to you.” (Pl.’s Dep. at
93-94). Plaintiff admitted that he did not retain any copies
of the purported grievances relative to his complaints against
C.O. Moore. (Id. at 88). 5
Plaintiff further testified that he not only understood the
grievance process, but also that he participated in an
orientation program at Clinton C.F. about how the grievance
process works at the facility. (Id. at 85-86). He admitted that
he filed “a couple” of grievances after the incident concerning
other matters, while still residing at Clinton C.F. (Id. at 90).
The record before this court clearly established that the
defendant did not exhaust administrative remedies with
respect to the failure-to-protect claim against C.O. Moore.
Given that an initial grievance was never filed, nor was the
claim ever appealed to CORC, the question becomes whether
plaintiff's failure to exhaust should be excused.
The defendant has satisfied his initial burden of
“establishing ... that a grievance process exist[ed] and
applie[d] to the underlying dispute.” Hubbs v. Suffolk
County Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015)
(citation omitted). 6 Thus, plaintiff assumes the burden
of producing evidence that one of the exceptions to the
administrative exhaustion requirement applies, excusing his
failure to exhaust and permitting his claim to survive
summary judgment. Id. (“If the defendants meet this initial
burden, administrative remedies may nonetheless be deemed
unavailable if the plaintiff can demonstrate that other factors
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... rendered a nominally available procedure unavailable as a
matter of fact.”) 7
*5 Liberally construed, plaintiff appears to argue that
administrative remedies were unavailable to him as a result of
C.O. Moore trying “to cover his mistakes up”. (Dkt. No. 20
at 2-3). Plaintiff does not offer any support for his claim other
than his statement “officers talk like inmates talk. So knowing
the incident, knowing I put in a grievance, they wanted to be
nosey [sic], and they opened it and never let it get to where
it was supposed to go once it was read.” (Pl.’s Dep. at 89).
During his deposition, plaintiff specifically stated that C.O.
Moore was not the person who picked up the grievance. (Pl.’s
Dep. at 88-89). Furthermore, plaintiff testified the alleged
grievance was sealed, so the unnamed C.O. would have no
way of knowing what conduct the grievance was referring to
unless (s)he opened the envelope. (Pl.’s Dep. at 92).
As noted above, plaintiff was on keep-lock status when he
allegedly attempted to submit a grievance relating to the
claim in this action by leaving a sealed envelope for C.O.s
to deliver. “Keeplock is a form of disciplinary confinement
segregating an inmate from other inmates and depriving him
of participation in normal prison activities.” Green v. Bauvi,
46 F.3d 189, 192 (2d Cir. 1995); N.Y. Comp. Codes R.
& Regs. tit. 7, § 301.6. While “[k]eep-lock is similar to
serving time in a Special Housing Unit ... [with the inmate]
remain[ing] in their assigned cell” (Dkt. No. 16-5, Terry Allen
Declaration ¶ 7), plaintiff acknowledged that keep-lock status
is “not like if you were in the SHU” (Pl.’s Dep. at 35).
In Williams v. Priatno, 829 F.3d 118, 123-27 (2d Cir.
2016), the Second Circuit considered whether administrative
remedies had been “actually available” to an inmate plaintiff
under Ross, after the district court granted the defendants’
motion to dismiss for failure to exhaust. The plaintiff alleged
that, while housed in a SHU, he drafted a grievance that he
delivered to a correction officer to forward to the grievance
office on his behalf. Id. at 120-121. Approximately two weeks
later, the plaintiff was transferred to a different facility. Id.
at 121. He never received a response to his grievance, and
alleged that it was never filed by the officer to whom he had
given it. It was undisputed that plaintiff never appealed the
grievance. Id.
The defendants in Williams argued that even if the grievance
was never filed, the plaintiff was required to appeal it and
complete the grievance process. Id. at 124. The defendants
relied on a DOCCS regulation that provided that “an inmate
may appeal a grievance ‘to the next step’ if he does not
receive a timely response.” Id. (quoting N.Y. Comp. Codes
R. & Regs. tit. 7, § 701.6(g)(2)). The Second Circuit rejected
this argument and held that, for an inmate in the plaintiff's
situation, the regulatory scheme was so “opaque” and
“confusing” as to be practically unavailable. Id. The Second
Circuit found that DOCCS regulations “only contemplate
appeals of grievances that [have been] actually filed ... [and]
give no guidance whatsoever to an inmate whose grievance
was never filed.” Id. Thus, Williams holds that “the process to
appeal an unfiled and unanswered grievance is prohibitively
opaque, such that no inmate could actually make use of it.”
Id. at 126. 8 See also Medina v. Napoli, 725 F. App'x 51,
53-54 (2d Cir. 2018) (following Williams in the context of a
summary judgment motion).
Some district court cases in the Second Circuit suggest that
Williams should be limited to its particular facts, e.g., by
not applying its holding to plaintiffs who are not confined
in a SHU. 9 See, e.g., Shaw v. Ortiz, No. 15-CV-8964, 2016
WL 7410722, at *6 (S.D.N.Y. Dec. 21, 2016) (“the factual
scenario here is different from that in Williams where the
Second Circuit found that part of the IGP's regulatory scheme
was ‘so opaque and so confusing that ... no reasonable
prisoner c[ould] use’ it.”) (citing Mena v. City of New
York, No. 13-CV-2430, 2016 WL 3948100, at *5 (S.D.N.Y.
July 19, 2016) (finding that the Second Circuit's decision
in Williams “hinged on the ‘extraordinary circumstances’
specific to the case before it”)); Blake v. Porlier, No. 9:18-
CV-1008 (DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y.
Oct. 4, 2019) (“Courts have taken an inmate's housing and
level of segregation from the general population into account
when determining the availability of grievance procedures.”)
(citing Rodriguez v. Cross, No. 15-CV-1079 (GTS/CFH),
2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (holding
that a plaintiff in keeplock was not entitled to an exhaustion
exception when he alleged that his grievance had not been
filed due to mail tampering, and subsequently never inquired
about it), report and recommendation adopted, 2017 WL
2790530 (N.D.N.Y. June 27, 2017)).
*6 In any event, unsupported assertions that a plaintiff
“filed a grievance but that it was somehow lost or destroyed”
have generally been found “insufficient to establish a genuine
issue of fact.” Blake v. Porlier, 2019 WL 7484052, at *5
(“Courts within the Second Circuit have continuously held
that ‘mere contentions or speculation of grievances being
misplaced by officers do not create a genuine issue of material
fact when there is no evidence to support the allegations.’
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”) (quoting Rodriguez v. Cross, 2017 WL 2791063, at *5);
Artis v. Dishaw, No. 9:14-CV-1116 (MAD/ATB), 2016 WL
11266599, at *7 n.13 (N.D.N.Y. Sept. 12, 2016) (finding
the plaintiff's failure to exhaust was not excusable, in part,
because while the plaintiff “state[d] that some grievances
were destroyed ... he ha[d] not submitted any copies of
these grievances, nor d[id] he specify when he attempted
to file them”), report and recommendation adopted, 2017
WL 1076343 (N.D.N.Y. Mar. 22, 2017); Engles v. Jones,
No. 6:13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y.
Dec. 28, 2018) (“Plaintiff's unsupported assertion that he filed
a grievance but that it was somehow lost or destroyed is
insufficient to establish a genuine issue of material fact.”)
(citing Scott v. Kastner-Smith, 298 F. Supp. 3d 545, 555
(W.D.N.Y. 2018)).
Moreover, courts in this Circuit have granted summary
judgment for failure to exhaust administrative remedies, even
for a prisoner confined to a SHU whose ability to directly file
a grievance or make a copy may be limited, when the plaintiff
provided no documentation or minimal corroborative details.
See, e.g., Sankara v. Montgomery, No. 9:16-CV-00885 (FJS/
TWD), 2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018)
(“Plaintiff's conclusory allegations that the DOCCS IGP
was unavailable to him [while confined to the SHU] were
insufficient to withstand summary judgment,” where the
plaintiff “provided no evidence that he actually did write
grievances; when they were written; the content of the
grievances ... the officers named in the grievance(s) ...; the
specific steps taken by Plaintiff to provide them to an officer
to send to the grievance office; and any specific follow up
with the grievance office[.]”), report and recommendation
adopted, 2018 WL 3408135 (N.D.N.Y. July 13, 2018);
Simpson v. Price, No. 9:19-CV-1413 (MAD/ATB), 2021 WL
7367083, at *9 (N.D.N.Y. Dec. 29, 2021) (in the absence of
any documentary evidence to corroborate plaintiff's alleged
attempt to file a grievance from the SHU, the court concludes
that plaintiff's completely unsupported, unclear, and vague
implication that the grievance was not properly processed
does not suffice to avoid summary judgment), report and
recommendation adopted, 2022 WL 336540 (N.D.N.Y. Feb.
4, 2022); Ozzborn v. Cornell, No. 9:17-CV-1039 (MAD/
ATB), 2021 WL 2227829, at *5 (N.D.N.Y. June 2, 2021)
(Plaintiff claimed that he filed a grievance from the SHU
by leaving a plain envelope addressed to the grievance
committee for the mail personnel to collect; but, because he
never received a response, he presumed that the grievance was
never submitted. Because plaintiff never followed up on his
grievance and successfully filed numerous other grievances
in the recent past, he has failed to demonstrate that his
administrative remedies were unavailable to him). 10
Here, the court does not merely rely on plaintiff's lack of direct
evidence, such as copies of the relevant grievances, in finding
that he has failed to establish a genuine issue of material fact
as to unavailability. Plaintiff in this case has done nothing
more than allege in conclusory fashion that he attempted to
file a grievance concerning a the September 6, 2018 incident.
Plaintiff's testimony about when he attempted to submit the
grievance was vague and he did not identify the officer who
allegedly collected it. Likewise, he has not supported his
claim that unnamed sergeants, officers, and counselors told
him “not to worry” with any documentary evidence. See, e.g.,
Belile v. Griffin, No. 9:11-CV-0092 (TJM/DEP), 2013 WL
1776086, at *8 (N.D.N.Y. Feb. 12, 2013) (“Plaintiff's mere
threadbare allegations that his grievances were intercepted
and discarded, without evidence to support such allegation,
including any evidence that identifies which defendant, in
particular, is responsible for discarding the grievances, are
insufficient to excuse his failure to comply with the IGP
[process]”), report and recommendation adopted, 2013 WL
1291720 (N.D.N.Y. Mar. 27, 2013).
*7 For the above reasons, the court concludes that plaintiff's
completely unsupported and vague claim that a grievance
he attempted to file against C.O. Moore relative to the
September 6, 2018 incident was not properly processed does
not suffice to avoid summary judgment. Accordingly, the
court recommends that C.O. Moore be granted summary
judgment and the second amended complaint be dismissed
against him, on the ground that plaintiff failed to exhaust his
administrative remedies.
Dismissal with prejudice is appropriate where the plaintiff had
the opportunity to exhaust administrative remedies, failed to
do so, and is unable to cure his failure to exhaust. Berry v.
Kerik, 366 F.3d 85, 87 (2d Cir. 2004). Here, plaintiff's time
to file the relevant grievance to CORC in accordance with
the rules and regulations has already passed, 11 rendering his
failure to exhaust his administrative remedies incurable at this
time. As a result, I recommend that plaintiff's complaint be
dismissed with prejudice as to these claims. See Livingston v.
Hoffnagle, No. 17-CV-1158 (MAD/DEP), 2019 WL 409366,
at *7 (N.D.N.Y. Feb. 1, 2019) (dismissing without leave to
amend, where the exhaustion error would not be cured by
permitting the plaintiff leave to amend).
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IV. Eighth Amendment Failure to Protect Claim
Defendant also seeks summary judgment on the merits of
plaintiff's failure to protect claim, arguing, among other
things, that plaintiff has failed to establish C.O. Moore
was acting with deliberate indifference to conditions that
posed a substantial risk of serious harm to plaintiff. For the
following reasons, the court agrees that summary judgment is
warranted, in the alternative, on the merits of plaintiff's Eighth
Amendment claim.
A. Legal Standards
In order to state an Eighth Amendment claim for failure
to protect an inmate, the plaintiff must show that he was
incarcerated under conditions posing a substantial risk of
serious harm, and prison officials acted with deliberate
indifference to that risk and the inmate's safety. Farmer v.
Brennan, 511 U.S. 825, 836, 114 S. Ct. 1970 (1994). The
plaintiff must show that prison officials actually knew of and
disregarded an excessive risk of harm to the inmate's health
and safety. Id. at 837, 114 S. Ct. 1970. The defendant must be
aware of the facts from which the inference can be drawn that
a substantial risk of serious harm exists, and the defendant
must also draw that inference. Id.
The failure of corrections officers to employ reasonable
measures to protect an inmate from violence by other inmates
may rise to the level of an Eighth Amendment violation. See
Ayers v. Coughlin, 780 F.2d 205, 209 (2d Cir. 1985) (citing
United States v. Bailey, 444 U.S. 394, 423 (1980)). “Reckless
disregard” of plaintiff's right to be free from attacks by other
inmates may be shown by the existence of a “pervasive risk of
harm to inmates from other prisoners and a failure by prison
officials to reasonably respond to that risk.” Knowles v. New
York City Dep't of Corr., 904 F. Supp. 217, 221-22 (S.D.N.Y.
1995) (citing Rucco v. Howard, No. 91 Civ. 6762, 1993 WL
299296, at *4 (S.D.N.Y. Aug. 4, 1993); Martin v. White, 742
F.2d 469, 474 (8th Cir. 1984)).
*8 An isolated omission by corrections officers generally
does not support a claim for deliberate indifference
absent circumstances involving evil intent, recklessness, or
deliberate indifference. Coronado v. Goord, No. 99 Civ.
1674, 2000 WL 1372834, at *4 (S.D.N.Y. Sept. 25, 2000)
(citing Ayers v. Coughlin, 780 F.2d at 209). Plaintiff may
allege a constitutional claim by alleging that the substantial
risk of inmate attacks was longstanding, pervasive, well-
documented, or expressly noted by prison officials in the past,
and that the officials being sued were exposed to information
concerning the risk and thus, must have known about it. Id.
(citing Farmer, 511 U.S. at 842-43).
B. Analysis
With due regard for plaintiff's status as a pro se litigant,
plaintiff has failed to establish that C.O. Moore knew of a
particular risk to plaintiff's safety or that C.O. Moore was
deliberately indifferent for failing to protect plaintiff. Plaintiff
merely offers conclusory, general allegations that C.O. Moore
knew about an alleged gang and/or race war happening at
Clinton C.F. (Dkt. No. 20 at 2). However, C.O. Moore has, in
his sworn declaration, denied having any knowledge about a
race war at Clinton C.F. or having any access to information
regarding an inmate's gang status. (Moore Decl. ¶¶ 21, 23).
Even if C.O. Moore did have access to such records, plaintiff
testified that he is not a member of a gang. (Jackson Dep. at
19). Thus, there is nothing in the record other than plaintiff's
conclusory allegations establishing that C.O. Moore knew
plaintiff was at a substantial risk of harm because of an alleged
gang war.
Plaintiff's claim is further undermined by his sworn testimony
admitting that he had not had any prior interactions with
the inmate who attacked him before the underlying incident.
(Jackson Dep. at 19-20); Gillard v. Jarvis, No. 9:11-CV-1021
(LEK/ATB), 2012 WL 7037734, at *7 (N.D.N.Y. Nov.
6, 2012), report and recommendation adopted, 2013 WL
474384 (N.D.N.Y. Feb. 7, 2013) (“If plaintiff did not know the
inmate who assaulted him, he cannot claim that defendants
“knew” and disregarded the serious risk that plaintiff would
be assaulted at Clinton by this unknown individual.”).
Plaintiff has not alleged that he was threatened by the other
inmate, or any member of the other inmate's race or gang,
prior to this incident. Additionally, neither inmate was in
protective custody when they were released form their cells.
(Moore Decl. ¶ 14). Plaintiff also testified he never asked for
protective custody before or after the incident. (Jackson Dep.
at 73).
“Courts routinely deny deliberate indifference claims based
upon surprise attacks.” Zimmerman v. Macomber, No. 95 Civ.
0882, 2001 WL 946383, at *5 (S.D.N.Y. Aug. 21, 2001)
(granting summary judgment in favor of the defendants where
the plaintiff failed to carry his burden to establish that the
defendant had knowledge of a substantial risk to plaintiff's
health or safety from an inmate attacker). Here, plaintiff
has failed to allege defendants knew of a prior altercation
between the plaintiff and his attacker, or of any threats that
had been made against the plaintiff. Fernandez v. N.Y.C.
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Dep't of Corr., No. 08 Civ. 4294, 2010 WL 1222017, at *4
(S.D.N.Y. Mar. 29, 2010); Clark v. Gardner, 256 F. Supp.3d
154, 168 (N.D.N.Y. 2017). Because plaintiff has alleged no
facts suggesting that C.O. Moore knew of a particular risk to
the plaintiff's safety, he has failed to raise a material question
of fact as to whether C.O. Moore was deliberately indifferent,
and summary judgment is warranted. Parris v. New York State
Dep't Corr. Servs., 947 F. Supp.2d 354, 363 (S.D.N.Y. 2013).
*9 WHEREFORE, based on the findings above, it is
RECOMMENDED, that Defendant's motion for summary
judgment (Dkt. No. 16) be GRANTED, and the complaint be
DISMISSED WITH PREJUDICE.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Hum. Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2023 WL 4710869
Footnotes
1 Defense counsel specifically advised plaintiff of the consequences of failing to respond to the summary
judgment motion. (Dkt. No. 16). Counsel forwarded, to plaintiff, a copy of the court's form Notification of the
Consequences of Failing to Respond to a Summary Judgment Motion, which provided in pertinent part:
If you do not file a proper response to this motion, the Court may grant the motion and dismiss some or
all of your claims. Under Local Rules 7.1(b) and 56.1(b), to file a proper response to this motion, you must
submit the following papers:
(1) A response to the defendants’ statement of material facts that admits and/or denies each of the
defendants’ assertions in matching numbered paragraphs, 1 and that supports each denial with citations
to record evidence.
* * *
WARNING: If you do not submit a proper response to the defendants’ statement of material facts, the Court
may deem you to have admitted the defendants’ factual statements.
(Dkt. No. 16 at 4).
2 This committee was formerly known as the “Inmate Grievance Resolution Committee,” but has recently been
renamed.
3 The program was formerly known as the “Inmate Grievance Program,” but has recently been renamed.
4 Plaintiff testified that he filed the grievance “it was in like the same – I want to say around like the 22 nd or
so.” (Pl.’s Dep. at 87-88).
5 Plaintiff alleges that he was told “it was a code 49 and that it had to go to the superintendent office.” (Dkt.
No. 20 at 3).
6 IGP Supervisors Gregory and Seguin stated Clinton C.F. had a fully functioning IGP program at all times
relevant to the complaint. (Gregory Decl. ¶ 16; Seguin Decl. ¶ 11). Plaintiff also testified that he filed a
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grievance for an unrelated matter after the incident and received an unfavorable decision and appealed that
decision. (Pl.’s Dep. 90-91).
7 I agree with Magistrate Judge Peebles’ cogent analysis that, while the burden of production may shift to a
plaintiff with respect to certain aspects of the exhaustion issue, “the ultimate burden of proof with respect to the
exhaustion defense remains, at all times, with the defendant.” See, e.g., Bailey v. Fortier, No. 9:09-CV-0742
(GLS/DEP), 2012 WL 6935254, at *5-6 (N.D.N.Y. Oct. 4, 2012), report and recommendation adopted, 2013
WL 310306 (N.D.N.Y. Jan. 25, 2013); Nelson v. Plumley, No. 9:12-CV-422 (TJM/DEP), 2015 WL 4326762,
at *7-8 (N.D.N.Y. July 14, 2015), report and recommendation adopted, 2013 WL 1305338 (N.D.N.Y. Mar.
18, 2013).
8 My summary of Williams tracks that of Magistrate Judge Stewart in Berman v. Durkin, No. 9:13-CV-136 (LEK/
DJS), 2017 WL 1215814, at *8 (N.D.N.Y. Mar. 10, 2017), report and recommendation adopted, 2017 WL
1207834 (N.D.N.Y. Mar. 31, 2017).
9 In Medina v. Napoli, 725 F. App'x at 53-54, the Second Circuit followed Williams in a case involving a SHU
inmate, but absent the additional circumstance of a transfer to a different facility, which might have further
complicated the inmate's ability to file a grievance.
10 District Judge D'Agostino distinguished Williams v. Priatno by noting the various ways in which the plaintiff
in Williams specified how he followed up with respect to the grievance that he left for delivery from the SHU,
which was never filed with the IGP. Id. at *4.
11 “Ordinarily, an inmate must first submit ‘a complaint,’ or grievance, to the facility's IGP clerk within twenty-one
days of the alleged occurrence giving rise to his complaint. 7 N.Y.C.R.R. § 701.5(a). Relief from the twenty-
one day time limit may be granted by the IGP supervisor based upon mitigating circumstances, provided,
however, that ‘[a]n exception to the time limit may not be granted if the request was made more than 45 days
after an alleged occurrence.’ ” Nelson v. Plumley, 2015 WL 4326762, at *2 (citing N.Y.C.R.R. § 701.6(g)(1)
(i)(a)).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Jackson v. West, Slip Copy (2025)
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2025 WL 1033787
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Craig A. JACKSON, Plaintiff,
v.
Sergeant WEST, et al., Defendants.
No. 9:23-CV-0306 (LEK/PJE)
|
Signed February 20, 2025
Attorneys and Law Firms
Craig A. Jackson, 22-B-0406, Cayuga Correctional Facility,
P.O. Box 1186, Moravia, New York 13118, Plaintiff pro se.
ALEXANDRA L. GALUS, ESQ., LAUREN R.
ROSENBERG, ESQ., NYS Office of the Attorney General
State Capitol, Albany, New York 12224, Attorneys for
defendants.
REPORT-RECOMMENDATION AND ORDER
PAUL J. EVANGELISTA, UNITED STATES
MAGISTRATE JUDGE
*1 Plaintiff pro se Craig A. Jackson (“plaintiff”), an inmate
who was, at all relevant times, in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”), brings this action pursuant to 42 U.S.C. §
1983, alleging that defendants Sergeant West and D. Fenlong
(“defendants”) violated his constitutional rights under the
Eighth Amendment. See Dkt. No. 1 (“Compl.”). Presently
before the Court is defendants’ motion for summary judgment
brought pursuant to Rule 56 of the Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”). See Dkt. No. 26. Plaintiff did
not oppose. For the following reasons, it is recommended that
defendants’ motion be granted.
I. Background 1
On a motion for summary judgment, the facts are related in
the light most favorable to the nonmoving party. See Rattner
v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (“In assessing
the record ... to determine whether there is a genuine issue
as to any material fact, the court is required to resolve all
ambiguities and draw all factual inferences in favor of the
party against whom summary judgment is sought.”).
On June 13, 2024, the Court served upon plaintiff forms titled,
“Notice of Due Date to Respond to Motion for Summary
Judgment” and “Notification of the Consequences of Failing
to Respond to a Summary Judgment Motion. Dkt. No. 27.
These forms advise plaintiff of his deadline to respond
to defendants’ motion and advise him that if he “do[es]
not submit a proper response to the defendants’ statement
of material facts, the Court may deem [plaintiff] to have
admitted the defendants’ factual statements.” Dkt. No. 27 at
1-2; see also N.D.N.Y. L.R. 56.1(b). Plaintiff did not respond
to defendants’ Statement of Material Facts.
In assessing the record to determine whether any such issues
of material fact exist, the court is required to resolve all
ambiguities and draw all reasonable factual inferences in
favor of the nonmoving party. See Chambers v. TRM Copy
Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). Where a non-
movant does not respond to the motion or fails to dispute
the movant's statement of material facts, the court may
not rely solely on the moving party's statement of material
facts; rather, the court must be satisfied that the citations to
evidence in the record support the movant's assertions. See
Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir.
2003). Therefore, the Court will, for purposes of this motion,
deem as true all properly-supported facts stated in defendants’
Statement of Material Facts. See Gubitosi v. Kapica, 154
F.3d 30, 31 n.1 (2d Cir. 1998) (accepting as true the material
facts contained in unopposed statement of material facts);
see also Demuth v. Cutting, No. 9:18-CV-789 (LEK/TWD),
2020 WL 957381, at *1 (N.D.N.Y. Feb. 3, 2020), report and
recommendation adopted, No. 9:18-CV-0789 (LEK/TWD),
2020 WL 950229 (N.D.N.Y. Feb. 27, 2020) (“Plaintiff's
failure to oppose Defendant's motion results in the admission
of properly supported facts, however the Court must still
ensure those facts show Defendant is entitled to judgment as
a matter of law.”).
A. Facts
*2 Defendants provide that plaintiff was housed at
Gouverneur from April 11, 2022, to June 13, 2022. See Dkt.
No. 26-2 at 2. Gouverneur had a fully-functioning inmate
grievance program during plaintiff's period of incarceration.
See id. (citing Dkt. No. 26-4 at ¶11). Plaintiff's claims are
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proper subjects for a grievance under 7 NYCRR § 701.1, et
seq. See Dkt. No. 26-2 at 2.
Plaintiff filed four grievances, from April 12, 2022, through
April 17, 2022, alleging that defendants West and Fenlong
assaulted him on April 11, 2022. See id. (citing Dkt. No. 26-4
at ¶14). The four grievances were consolidated into Grievance
No. GOV-0087022. See id. Due to the nature of the grievance,
it was forwarded to the Superintendent. See id. at 3. On May
5, 2022, the Superintendent issued a determination denying
plaintiff's grievance. See id. at 3 (citing Dkt. No. 26-4 at ¶28).
Defendants contend that plaintiff did not appeal the grievance
denial to CORC. See id. (citing Dkt. No. 26-4 at ¶13).
II. Legal Standards
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 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. See 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 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).
*3 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.
III. Discussion
A. Argument
Defendants argue that this case must be dismissed because
plaintiff did not exhaust his administrative remedies prior
to commencing this action because he did not appeal the
Superintendent's denial of his grievance to CORC. See Dkt.
No. 26-1 at 5. Although plaintiff does not oppose this
motion, in his deposition, he contended that he appealed
the Superintendent's denial to CORC but did not receive a
response. See Dkt. No. 26-5 at 92-93.
B. Analysis
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1. Exhaustion Standards
The Prison Litigation Reform Act (“PLRA”) requires that
a prisoner exhaust any administrative remedies available to
him or her before bringing an action for claims arising out
of his or her incarceration. See 42 U.S.C. § 1997e(a) (“No
action shall be brought with respect to prison conditions under
section 1983 ... by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies
as are available are exhausted.”). 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 v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is
required even where the prisoner seeks relief not available
in the administrative grievance process, such as money
damages. See id. at 524. “To 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 is incarcerated.” Adams v. Annucci, 537
F. Supp. 3d 475, 477-78 (W.D.N.Y. 2021); see Jones v.
Bock, 549 U.S. 199, 218 (2007). “In accordance with the
PLRA ... [DOCCS] has made available a well-established
inmate grievance program ... [which] involves [ ] following
[a] three-step procedure for the filing of grievances.” Smith
v. Kelly, 985 F. Supp. 2d 275, 280 (N.D.N.Y. 2013) (citing 7
N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7).
“Exhaustion is mandatory—unexhausted claims may not be
pursued in federal court.” Amador v. Andrews, 655 F.3d 89,
96 (2d Cir. 2011). Nonetheless, “the defendants have the
burden of proving that [the plaintiff's] claim has not been
exhausted[.]” Key v. Toussaint, 660 F. Supp. 2d 518, 523
(S.D.N.Y. 2009) (citations omitted). A defendant satisfies this
burden by “establishing ... that a grievance process exists” and
that the plaintiff failed to use the grievance procedure. Hubbs
v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015)
(citing Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003),
and Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999)).
“[T]he PLRA requires proper exhaustion, which means using
all steps that the agency holds out, and doing so properly
(so that the agency addresses the issues on the merits).”
Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir.
2006) (quotation marks and citations omitted). “[O]nce a
defendant has produced reliable evidence that such remedies
were generally available, and the plaintiff nevertheless failed
to exhaust those remedies, the plaintiff must then counter
the defendant's proof by showing that, as to him or her, the
remedy was unavailable.” Coleman v. Nolan, No. 9:15-CV-40
(ATB), 2018 WL 4732778, at *4 (N.D.N.Y. Oct. 2, 2018)
(citing Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y.
2013)). Availability means “an inmate is required to exhaust
those, but only those, grievance procedures that are ‘capable
of use’ to obtain ‘some relief for the action complained of.’
” Ross v. Blake, 578 U.S. 632, 642 (2016) (quoting Booth
v. Churner, 532 U.S. 731, 738 (2001)). “An inmate ... must
exhaust available remedies, but need not exhaust unavailable
ones.” Id.
*4 There are “three kinds of circumstances in which an
administrative remedy ... is not capable of use to obtain
relief.” Ross, 578 U.S. at 643. First, “an administrative
procedure is unavailable when (despite what regulations or
guidance materials may promise) it operates as a simple
dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates.” Id. (citing Booth,
532 U.S. at 736). “Next, an administrative scheme might be
so opaque that it becomes, practically speaking, 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. at 644.
2. Declarations & Plaintiff's Deposition Testimony
Defendants submit a declaration from Laura Hutchins, the
Incarcerated Grievance Program Supervisor at Gouverneur
Correctional Facility. See Dkt. No. 25-3. Ms. Hutchins
declared that plaintiff successfully completed “shop facility
orientation” on May 16, 2022, through May 22, 2022, during
which time he was given a presentation on how to file and
exhaust grievances. See Dkt. No. 26-3 at 2, 9. Ms. Hutchins
located records of plaintiff having filed four grievances in
April 2022, regarding a staff assault on April 11, 2022, and
that these grievances were consolidated into Grievance No.
GOV-0087-22. See id. at 6.
Gouverneur's records further reveal that the Superintendent
denied plaintiff's consolidated grievance on May 5, 2022. See
Dkt. No. 26-3 at 6 (citing Dkt. No. 26-3 at 16). The denial
form advised plaintiff that “[i]f you wish to appeal the above
decision of the Superintendent, please sign below and return
this copy to the IGRC at the facility where the grievance was
filed. You have seven (7) calendar days from the receipt of
this notice to file your appeal. Please provide a reason why
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you are appealing this decision to CORC.” Id. Ms. Hutchins
declared that Gouverneur's records further show that plaintiff
never appealed the Superintendent's denial of his consolidated
grievance. See Dkt. No. 26-3 at 9.
Defendants further submit a declaration from Rachael
Seguin, Director of the Incarcerated Grievance Program
for DOCCS. See Dkt. No. 26-4 at 1. Ms. Seguin declares
that DOCCS Directive 4040 provides that DOCCS must
“maintain grievance files for the current calendar year and the
previous four calendar years,” that DOCCS maintains such
files, and that “she searched DOCCS records for any appeals
received by CORC relating to plaintiff's instant allegation.”
Dkt. No. 26-4 at 4. The records revealed that plaintiff “has not
appealed any grievances to CORC pertaining to allegations
of Eighth Amendment violations against Defendants Fenlong
and West, while Plaintiff was housed at Gouverneur C.F. in
DOCCS custody under DIN: 22-B-0405.” Id.
Defendants note that plaintiff testified at his deposition that
he “ ‘filed the appeal at Gouverneur in May, like two days
after’ he received the determination.” Dkt. No. 26-1 at 9.
Defendants contend that this assertion is incorrect because
DOCCS and Gouverneur records show that plaintiff never
appealed the Superintendent's denial. See id. Defendants
anticipate a potential argument, based on statements plaintiff
made in his deposition, of the existence of “some type of
conspiracy on behalf of the facility to hide or destroy his
paperwork,” but contend that “such allegations are conclusory
and are not sufficient to defeat a motion for summary
judgment.” Id. Thus, defendants argue that this matter must be
dismissed for plaintiff's failure to exhaust his administrative
remedies before commencing this action.
As plaintiff has not responded to the motion for summary
judgment, the Court does not have before it any of plaintiff's
positions regarding exhaustion. Out of special solicitude to
plaintiff and in an attempt to view the facts in the light
most favorable to the nonmoving party, the undersigned
has searched the record for potential arguments regarding
exhaustion. In his deposition, when asked if he “understand[s]
what the grievance process is at ... the DOCCS facility,”
plaintiff acknowledged that he attended an orientation about
grievances and stated that he “somewhat” understood the
process. Dkt. No. 26-5 at 79. Plaintiff testified that his
understanding of the grievance process is that he needs to
“follow the necessary steps. I have to follow these specific
steps.” Id. He states, “what I can do is I can bring it to the
officer's attention.... If that don't work, maybe speak to a
sergeant or something like that. If that don't get nowhere, I
write a grievance.” Id. at 79. When plaintiff was asked how he
knew to file a grievance, plaintiff stated, “This isn't my first
time in jail. I just – you know, I – I—and these grievances
that I've written, these are the first grievances I ever written
in my whole life. I just – I just knew that, you know what I
mean, I had to report it.” Id. at 80. When asked further how he
knew how to file a grievance, plaintiff responded, “I mean, I
had a bunkie in the box. I just wrote out – it wasn't no specific
thing. I just – I just took a piece of paper and just wrote down
what happened and sent it – and sent it to grievance.” Id. at
81. When the AAG asked how he knew where to send the
grievance, plaintiff testified,
*5 it's no specific place. I was in the
box. It's no specific place you have
to send a grievance. You just slide it
underneath your door. They come and
get the mail. It is not like, no, I could
go and put this in a grievance box. No,
we're locked in already. We're in a box.
Id.
The AAG inquired about the grievance orientation plaintiff
attended, to which plaintiff stated, “I am not sure about that,
man. I am not even going to even – I – I can't answer it.”
Dkt. No. 26-5 at 81-82. Plaintiff testified that he filed “like
five” grievances with respect to the issues underlying this
action. Id. at 82. When asked if he heard back about his
grievances, plaintiff testified, “I received a letter in the mail ...
facility mail, stating me that -- it was stating that it would
– they had shut it down. They – they – they shut down my
grievance. It wasn't accepted.” Id. at 83. In response to the
AAG's question whether he heard back from the grievance
office about his grievances, plaintiff testified, “yes.” Id. at 83.
Plaintiff acknowledged the Superintendent's denial and stated
that he understood the denial to mean, “it wasn't going to be
nothing that was done about the incident and that it was going
to be swept under the rug.” Id. at 84. He further testified that
he understood the Superintendent's denial to mean that “it
wasn't found valid. It was – it was shut down. It wasn't going
through.... Basically, ... it's denied.” Id. at 92.
Plaintiff testified that he “filed the appeal at Gouverneur in
May, like two days after I got – right after I got that paper in
the mail, right, I filed – I filed my appeal for it.” Dkt. No. 26-5
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at 92. He states he did not receive a response to his appeal of
the Superintendent's decision. See id. at 92-93. When asked if
it was his “understanding that the appeal you filed was going
to go to CORC,” plaintiff testified that he “didn't know where
it was going.” Id. He testified affirmatively that he filled out
the bottom portion of the Superintendent's denial form and
sent it in. See id. at 93. When plaintiff did not hear back
on his appeal of the Superintendent's denial, he did not file
another grievance or follow up with any kind of request to
the grievance office. See id. at 94. When asked why he did
not follow up, plaintiff stated, “I was still in that facility right
there. And a lot of the paperwork, a lot of stuff, it was all
against me over there. You get what I'm saying. I really didn't
have a – like I said, I put in five grievances. You showed me
four. I'm missing a grievance. You get what I'm saying?” Id. at
94-95. Plaintiff contended that he was “refused medical over
there. I did not feel safe over there. Any type of paperwork
that I do have and that I was able to escape with out of that
facility, like I'm blessed to have it. Like I – I – I didn't have
no control.” Id.
When questioned about how he filed the appeal of his
grievance denial, plaintiff testified that he “had another fellow
peer help me out in here because I'm – I'm really not law
library savvy like that. So I actually paid somebody to help me
put this whole thing together ... [s]o I could get the help that I
need because I – I – like I said, I've never been involved in this
type of stuff before .... I don't know what I am doing .... I told
my story to a couple guys ... and they helped me to get this
far. And I -- I'm struggling here, man.” Dkt. No. 26-5 at 96.
*6 Plaintiff testified that, to file his appeal of the
Superintendent's denial, he went to the law library with
another inmate who “basically did everything. I signed it and
– and we sent it out.” Dkt. No. 26-5 at 97. Plaintiff testified
that he sent his appeal to “Albany – it went to this same
address that I get all this mail from. It went to office of the
attorney – it went to you.” Id. When asked to clarify if plaintiff
was stating that he sent his appeal of the Superintendent's
decision to the Attorney General's Office, plaintiff stated, “It
went to the – all that – that's all in the same building in
Albany, right? The Attorney General's office and everything
is in Albany, two twenty – I believe it's two twenty.” Id. at
97. When confronted with the fact that the Superintendent's
denial of his grievance contained instructions stating that any
appeal of the Superintendent's decision is to be sent to the
Inmate Grievance Resolution Committee (“IGRC”) at the
facility where the grievance is filed, but that he testified he
sent it to the Attorney General's Office, plaintiff stated that
he was “not even sure” where he sent it. Dkt. No. 26-5 at
97. He stated that he is “pretty sure I sent it to the grievance.
I am not sure where it went, man. I know I sent it out. I
did every little piece of paperwork I was supposed to do.”
Id. at 98-99. When asked whether he was “fearful that your
grievance somehow wouldn't be listened to at that facility,
plaintiff replied “Grievance? I was – was more fearful for my
life.” Id. at 99.
Plaintiff testified that when he was transferred out of
Gouverneur to Cayuga, he did not follow up with the
grievance office at Cayuga or attempt to pursue his grievance
further. See Dkt. No. 26-5 at 95. Plaintiff testified that he
“didn't know I had to” as he already filed five grievances
at Gouverneur and “they shut it down.” Id. at 95. “I put the
appeal in. I didn't hear nothing about the appeal.” Id. He
says when he was transferred to Cayuga, he also did not hear
anything about his appeal. See id. Plaintiff then testified that
he did not attempt to seek the status of his grievance once
he was transferred to Cayuga because he “was happy to get
out of that facility .... it's a whole different environment in the
facility I am in now than Gouverneur. You could – you could
feel the fear over there.” Id. at 100. Plaintiff testified that once
he was transferred to Cayuga, “I could start fresh and then go
about my business, do my time, and get home. I wasn't really
like – I didn't want the whole state against me, man. I didn't
want to leave one jail and then go to another jail and I got the
police all over me there neither. So I wanted to like kind of
fly under the radar.” Id. at 101.
Plaintiff states that upon transfer to Cayuga, he did not
complete another orientation about the grievance procedure.
See Dkt. No. 26-5 at 102. As he had completed a full
orientation at Gouverneur, “the grievance thing was not
discussed” at Cayuga; he underwent a more streamlined
orientation. Id. When asked whether the original orientation at
Gouverneur covered grievances, plaintiff then testified, “I'm
not sure about all that, man. I – that's not something that I
am paying attention to, man. I came to jail to do my time,
man. Not write grievances, man. You get what I'm saying?
That's – that's – that's just what it boils down to.” Id. at 102.
When asked to clarify whether he was testifying that he never
attended an orientation that went over the grievance process,
plaintiff again stated, “I'm not sure, man. I – maybe don't be
paying attention to a lot of shit. If it – if it don't – if it don't
affect me or something like that, I'm just not paying attention
to everything. I have a short attention span on certain things.”
Id.
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Plaintiff testified that once he was transferred to Cayuga, he
was in general population, but when asked whether plaintiff
could have “stopped by the grievance office at any point in
time,” he testified, “I mean, yeah. Yes, I guess. I'm not even
sure if we even have a grievance building here at all.” Dkt. No.
26-5 at 105. Plaintiff further testified that while at Cayuga,
he was not “intimidated all,” “assaulted at all,” or “in fear for
[his] life at all,” by Cayuga staff. Id.
3. Exhaustion of Administrative Remedies
Here, the record is clear that plaintiff did not exhaust
his administrative remedies before commencing this
action. Although plaintiff testified that he appealed the
Superintendent's denial of his grievance with help from a
fellow inmate, he testified that was unsure if he sent the appeal
to the IGRC or to the Attorney General's Office or another
agency in Albany. The Court has before it no proof of his
alleged appeal.
*7 Plaintiff's testimony on exhaustion is littered with
contradictions and lacks support. Plaintiff testified that he
never received a response to his appeal, but did not follow up
while he was at Gouverneur or Cayuga. Plaintiff's testimony
was conflicting as to why plaintiff did not follow up. He
indicated that he did not fully understand the grievance
procedure, stating that he was not fully sure whether he
was given a presentation about the grievance process at
Gouverneur's orientation because he stopped paying attention
based on his belief that it was not applicable to him or due to
his short attention span. See Dkt. No. 26-5 at 102. Elsewhere
in his deposition plaintiff suggests he was in fear for his life
while at Gouverneur, but when asked if he feared filing an
appeal to CORC, he indicated he had a general fear for his
life at Gouverneur rather than a specific fear of proceeding
with the grievance procedure. See Dkt. No. 26-5 at 99. Yet,
plaintiff conceded that he did file four to five grievances while
at Gouverneur. Plaintiff testified that he did not follow up on
the grievance or pursue anything further when transferred to
Cayuga because he did not know he was supposed to. See id.
at 101. However, he also testified that he did not follow up
on his grievance once at Cayuga because he was trying to fly
under the radar, complete his time in custody, and go home.
See Dkt. No. 26-5 at 100-101.
In support of their motion for summary judgment, defendants
provide the declarations of Ms. Hutchins and Ms. Seguin, who
both declared that they checked records at both Gouverneur
and DOCCS and there is no record of his appeal. See Dkt.
Nos. 26-3, 26-4. Plaintiff does not counter defendants’ proof
with supported arguments or evidence; he does not provide
to the Court a copy of his appeal or any clarity on where
he alleges to have sent the appeal. See Dkt. No. 26-5 at 12;
See Gibbs v. Gadway, No. 9:19-CV-281 (GTS/DJS), 2019
WL 5191506, at *3 (N.D.N.Y. Oct. 15, 2019), report and
recommendation adopted, No. 9:19-CV-0281 (GTS/DJS),
2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (“Plaintiff
makes a purely conclusory allegation that he appealed the
grievance denial to CORC. Significantly, plaintiff has not
provided a copy of the grievance appeal or even asserted on
what date he filed the appeal. In light of the documented proof
that no such appeal was filed, such a conclusory statement
is insufficient to create a material question of fact on this
Motion.”); see also Blake v. Porlier, No. 9:18-CV-1008
(DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y. Oct. 4,
2019), report-recommendation adopted, No. 9:18-CV-1008
(DNH/CFH), 2020 WL 58613 (N.D.N.Y. Jan. 6, 2020) (“Even
considering that plaintiff swore under penalty of perjury that
he mailed a grievance within the allotted time frame, he did
not provide any evidence to substantiate his allegations. [ ]
Therefore, plaintiff's unsupported allegations cannot give rise
to an issue of material fact sufficient to defeat a motion for
summary judgement.) (citations omitted)). “In short, ‘[g]iven
the lack of evidence that Plaintiff's appeal to CORC was ever
filed, or ever followed up on, it is not that the full scope of
administrative remedies was not available to Plaintiff – rather,
Plaintiff failed to fully exhaust the administrative remedies
available to him.’ ” Shabazz v. Bailey, No. 9:20-CV-00057
(LEK/TWD), 2023 WL 5779533, at *7 (N.D.N.Y. June 28,
2023), report and recommendation adopted, No. 9:20-CV-57
(LEK/TWD), 2023 WL 5622049 (N.D.N.Y. Aug. 31, 2023),
aff'd, No. 23-7252, 2025 WL 272602 (2d Cir. Jan. 23,
2025) (quoting Houston v. Coveny, No. 14-CV-6609, 2020
WL 2494439, at *3 (W.D.N.Y. May 14, 2020) and citing
Litchmore v. Williams, No. 11-CV-7546, 2013 WL 3975956,
at *6 (S.D.N.Y. Aug. 5, 2013) (“no ‘sufficient basis in the
record to find that administrative remedies were unavailable’
where, among other things, there was ‘no evidence here
that the plaintiff's appeal was actually mailed, intercepted,
or ignored’ and ‘DOCCS has no record of any appeal filed
with CORC’ ”)). “If a prisoner has failed to properly follow
each of the applicable steps before commencing litigation,
he has failed to exhaust his administrative remedies.” Scott
v. Uhler, No. 9:16-CV-403 (TJM/CFH), 2019 WL 5197139,
at *5 (N.D.N.Y. July 31, 2019), report and recommendation
adopted, 2019 WL 4667495 (N.D.N.Y. Sept. 25, 2019).
Accordingly, the undersigned concludes that plaintiff has
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failed to exhaust his administrative remedies in that he has not
raised a material question of fact as to whether he appealed
the Superintendent's denial of his grievance to CORC. Thus,
the undersigned must next assess whether administrative
remedies were available to plaintiff.
4. Availability of Administrative Remedies
*8 New York law establishes a three-step grievance
and appeal process for prisoners. See N.Y. Comp. Codes
R. & Regs. tit. 7 (“7 N.Y.C.R.R.”), § 701.5. That
process consists of the following: (1) “[a]n inmate must
submit a complaint” with the Inmate Grievance Resolution
Committee, id. § 701.5(a)-(b); (2) if the inmate disagrees
with the response to the grievance, the inmate must “appeal
to the superintendent,” id. § 701.5(c); and (3) if the
inmate disagrees with the superintendent's findings, he
must “appeal to the CORC ... within seven calendar days
after receipt of the superintendent's written response to the
grievance,” id. § 701.5(d). “A prisoner has not exhausted
his administrative remedies until he goes through all three
levels of the grievance procedure.” Toussaint, 660 F. Supp.
2d at 523 (cleaned up). The statute also states, “[i]f a
grievant does not receive a copy of the written notice of
receipt within 45 days of filing an appeal, the grievant
should contact the IGP supervisor in writing to confirm
that the appeal was filed and transmitted to CORC.” 7
N.Y.C.R.R. § 701.5(d)(3).
Foskey v. Paige, No. 9:20-CV-504 (LEK/TWD), 2024 WL
2109150, at *3 (N.D.N.Y. May 10, 2024). 2
Applying special solicitude, it is arguable that plaintiff is
contending that administrative remedies were unavailable on
several grounds, some of them conflicting. The Supreme
Court of the United States has identified three circumstances
in which a court may find administrative remedies are not
“available” for PLRA purposes:
First, ... an administrative procedure
is unavailable when ... it operates
as a simple dead end—with officers
unable or consistently unwilling to
provide any relief to aggrieved
inmates.... Next, an administrative
scheme might be so opaque that
it becomes, practically speaking,
incapable of use. In this situation,
some mechanism exists to provide
relief, but no ordinary prisoner can
navigate it .... And finally, the same
is true when prison administrators
thwart inmates from taking advantage
of a grievance process through
machination, misrepresentation, or
intimidation.
Ross, 578 U.S. at 643-44. The Second Circuit has interpreted
these three circumstances as nonexhaustive as Ross focused
on the “three kinds of circumstances that were ‘relevant’ to
the facts of that case.” Williams v. Correction Officer Priatno,
829 F.3d 118, 124 n.2 (2d Cir. 2016) (citing Ross, 578 U.S.
at 643).
5. Was the Grievance Process Opaque?
a. Did Not Know How to Grieve
First, plaintiff's deposition testimony suggests that he did
not fully exhaust because was not sure how to complete the
grievance process. He testified that he had been incarcerated
in state facilities before his incarceration at Gouverneur in
2022 but never had filed a grievance before the ones he
submitted in this action. Plaintiff admits that he attended
Gouverneur's “shop facility orientation,” but states that he
was unaware if he was taught how to exhaust administrative
remedies because he did not pay attention. See Dkt. No. 26-5
at 102
The undersigned observes that the underlying incidents
are alleged to have occurred on April 11, 2022. Plaintiff
filed his four or five grievances in April 2022, which
were consolidated. The Superintendent denied plaintiff's
consolidated grievance on May 5, 2022. Plaintiff attended
“shop facility orientation” from May 16, 2022, to May 22,
2022. See Dkt. No. 26-3 at 9. Plaintiff alleges to have
appealed 3 to CORC within two days of receiving his
denial, meaning this all occurred before he competed his
facility orientation training regarding how to file and exhaust
grievances on May 16-22, 2022. See Dkt. No. 25-3 at 16; Dkt.
No. 26-3 at 9.
*9 The undersigned assesses whether plaintiff's statement
that he did not know how to grieve is sufficient to raise
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a valid argument as to opaqueness. The Second Circuit
recently explained the “opaqueness” exception to the PLRA's
exhaustion requirement applies where “[t]he regulations
simply do not contemplate the situation in which [the
prisoner] found himself, making it practically impossible
for him to ascertain whether and how he could pursue his
grievance.” Williams v. Priatno, 829 F.3d 118, 124 (2d Cir.
2016).
Liberally read, plaintiff's deposition testimony suggests
that he did not understand the grievance procedure at
any stage. However, even accepting as true that plaintiff
did not fully understand what steps needed to be taken
to exhaust his administrative remedies, plaintiff does not
demonstrate that his ignorance of the grievance process
rendered administrative remedies “opaque” as that term is
contemplated by precedent.
To the extent plaintiff appears to have testified that he did
not know how to proceed with the grievance process, plaintiff
conceded that he: was aware that a grievance process existed;
knew he had to “follow the necessary steps. I have to
follow these specific steps”; knew that if informal methods
of resolution were unsuccessful, he should file a grievance;
asked his “bunkie” to help him file grievances; filed at least
four grievances with respect to the underlying incident; and
hired a fellow inmate to assist him. Dkt. No. 26-5 at 79.
“[S]ince Plaintiff was able to discern and navigate the first
two steps of the grievance process, there is nothing to suggest
that the third step, the appeal to CORC, was opaque to such
a point that it became incapable of use.” Beauvoir v. Smith,
No. 9:14-CV-1495 (MAD/DEP), 2017 WL 4271636, at *3
(N.D.N.Y. Sept. 26, 2017).
Defendants submit records from Gouverneur demonstrating
that plaintiff successfully completed shop facility orientation
which included training on how to file a grievance and
exhaust administrative remedies. When asked about such
training, plaintiff gave vague and dismissive answers,
suggesting he was unsure if he learned about how to proceed
with a grievance and the various steps required because he
did not pay attention, believing that it was not relevant to him
and/or because he did not have a sufficient attention span to
focus. Plaintiff testified that he did not know how to grieve
and properly exhaust his grievance does demonstrate that
administrative remedies were unavailable to him. Plaintiff
concedes that he attended the orientation, but that he was
unsure if he was taught how to proceed through the grievance
process because he did not pay attention as he felt the
information was not relevant to him or he zoned out due to
attention span issues.
Similarly, when confronted at his deposition with the fact
that the Superintendent's denial of his grievance included
instructions that advised him that if he wished to appeal
the denial, he was to sign and return the appeal section to
the IGRC, plaintiff did not deny that the form contained
such instruction, but responded that he was “not even sure”
where he sent the appeal and was “pretty sure I sent it to
the grievance. I am not sure where it went, man. I know
I sent it out. I did every little piece of paperwork I was
supposed to do.” Dkt. No. 26-5 at 97-99. Plaintiff's choosing
not to pay attention to the training needed to learn how to
exhaust or declining to seek assistance does not demonstrate
that the grievance process was “essentially unknowable.”
Hill v. Tisch, No. 02-CV-390, 2016 WL 6991171, at *7
(E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to
demonstrate that the grievance “procedures were essentially
unknowable”). It demonstrates that plaintiff actively chose
against educating himself or allowing his facility to educate
him as to the grievance procedure.
*10 The undersigned recognizes that plaintiff's orientation
took place after he filed his grievances and received the
Superintendent's denial. Thus, although he may have been
untrained regarding the grievance process at the time he filed
his grievances and received the Superintendent's denial, he
attended such training by May 22, 2022, at the latest. Upon
completing the orientation, he could have reached out to the
IGRC or CORC and requested an extension 4 of time to
appeal to CORC, citing mitigating circumstances, but failed
to do so. See 7 NYCRR § 701.6(g); 5 see generally Valverde
v. Folks, No. 1:19-CV-08080-MKV, 2022 WL 836310, at
*7 (S.D.N.Y. Mar. 21, 2022) (“As such, it is possible that
if Plaintiff had sought an extension to file an appeal from
CORC, he could have received one. Plaintiff never did so.”),
aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10,
2023). Plaintiff's failure to avail himself of the grievance
procedure is based on his ignorance of the training and failure
to seek out resources rather than the opacity of the procedure.
“Courts within the Second Circuit are split regarding whether
a failure to respond by CORC constitutes unavailability
excusing a plaintiff's failure to exhaust.” High v. Switz,
No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3736794, at *4
(N.D.N.Y. July 9, 2018), report and recommendation adopted
sub nom. High v. PA Switz, No. 9:17-CV-1067 (LEK/DJS),
2018 WL 3730175 (N.D.N.Y. Aug. 6, 2018). Indeed, the
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regulations “ ‘do not describe a mechanism’ for appealing
or advancing a grievance when a grievant does not receive a
response from CORC.” Id. at *5 (quoting Williams, 829 F.3d
at 124).
Plaintiff's case differs from those in which courts held
administrative remedies were unavailable where a plaintiff
appealed to CORC, but CORC never responded or failed to
respond within a reasonable period of time. See, e.g., High,
2018 WL 3736794, at *4 (exclusing the plaintiff's failure
to exhaust where the plaintiff appealed to CORC but never
received a response, finding administrative remedies were
unavailable when CORC failed to respond). Unlike in those
cases, 6 where the Court found that administrative remedies
were unavailable because the regulations did not explain what
an inmate should do if he appealed to CORC but receives no
response, in those cases there did not appear to be a question
whether the plaintiffs actually appealed to CORC. Here,
plaintiff presents no details nor any proof of his alleged appeal
to CORC beyond his conclusory claim during his deposition.
He testified that he appealed the Superintendent's denial, but
offered conflicting testimony over where the appeal was sent
– either to the Attorney General's Office or another agency “in
Albany” or to the IGRC, did not provide a copy of the appeal,
and did not indicate that he ever attempted to follow up with
CORC or the IGRC after failing to receive any response
from his appeal. See Valverde v. Folks, No. 1:19-CV-08080
(MKV), 2022 WL 836310, at *8 (S.D.N.Y. Mar. 21, 2022),
aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10,
2023) (“Here, unlike Williams [v. Priatno], Plaintiff concedes
that his initial grievance was processed and answered. [ ] ....
Plaintiff had an avenue to appeal the denial of his grievance,
however he filed the appeal form improperly and it does not
appear that he made any attempt to ever ask the grievance
supervisor for confirmation that his appeal was received.”).
*11 Plaintiff proffered no argument or evidence that he
“received written notice that the appeal was filed or that
he attempted to contact CORC of the IGRC ... regarding
the status of his appeal before commencing this action.”
Bowie v. Woodruff, No. 9:1-8CV-0266 (BKS/ML), 2019
WL 7606078, at *6 (N.D.N.Y. Sept. 20, 2019), report and
recommendation adopted, No. 9:18-CV-00266 (BKS/ML),
2019 WL 5445519 (N.D.N.Y. Oct. 23, 2019) (citing Fox v.
Lee, 9:15-CV-0390 (TJM/CFH), 2018 WL 8576600, at *7
(“granting summary judgment because the plaintiff did not
proffer evidence that he wrote to the IGRC or CORC inquiring
as to the status of his appeals” and “ ‘never contacted Eastern's
[IGP supervisor] in writing ... to confirm that any of his
appeals were filed and transmitted to CORC.’ ”) vacated in
part on other grounds 2023 WL 7481423 (2d. Cir. Nov. 13,
2023); see § 701.5(d)(3)(i) (noting that the IGRC dates all
CORC appeals and will forward the inmate a copy of the
receipt, and that “[i]f a grievant does not receive a copy
of the written notice of receipt within 45 days of filing an
appeal, the grievant should contact the IGP supervisor in
writing to confirm that the appeal was filed and transmitted
to CORC.”). Indeed, “[t]he record is devoid of any indication
that Plaintiff followed up with the [facility] IGP supervisor
‘to confirm that the appeal was filed and transmitted to
CORC’ when he did not receive written confirmation within
forty-five days that his appeal was received.” Shabazz, 2023
WL 5779533, at *7 (quoting 7 N.Y.C.R.R. § 701.5(d)(3)
(i) and citing Simpson v. Price, No. 9:19-CV-1413 (MAD/
ATB), 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29, 2021))
(“granting summary judgment on exhaustion grounds where
plaintiff ‘provided no specifics regarding when the grievances
were written, their content, or the steps he took to provide
them to an officer to send to the grievance office’ and
there was no documentary evidence to corroborate the fact
plaintiff attempted to file a grievance, such as follow-up
correspondences.”); see Gizewski v. N.Y. State Dep't of Corr.
& Cmty. Supervision, No. 9:14-CV-124, 2016 WL 3661434,
at *13 (N.D.N. Y July 5, 2016) (concluding that the plaintiff
did not exhaust his administrative remedies because he failed
to take further action under § 701.5(d)(3)(i) when he did not
receive written notice of receipt by the CORC within 45 days
of filing his appeal; he did not contact the Inmate Grievance
Program to ascertain whether CORC received his appeal),
aff'd, 692 F. App'x 668 (2d Cir. 2017)).
By contrast, defendants produce records from both
Gouverneur and DOCCS, along with declarations from the
officials who maintain such records, showing that they have
no record of plaintiff having ever filed an appeal of the
Superintendent's denial of his grievance. See Dkt. Nos. 26-3,
26-4 at 7-8. Accordingly, plaintiff has failed to demonstrate
that his lack of understanding of grievance process amounts
to the grievance process being so opaque to be rendered
incapable of use.
b. Transfer
Further, plaintiff's transfer from Gouverneur to Cayuga
“does not excuse his failure to exhaust, as the grievance
process is identical in all New York state-run facilities.”
Campbell v. Prue, No. 9:16-CV-0004 (MAD/CFH), 2018
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WL 4635708, at *5 (N.D.N.Y. July 3, 2018), report and
recommendation adopted, No. 9:16-CV-0004 (MAD/CFH),
2018 WL 3574871 (N.D.N.Y. July 25, 2018) (citing Hartry
v. Cnty. of Suffolk, 755 F.Supp. 2d 422, 434 (E.D.N.Y.
2010)) (“[S]ome courts [ ] have found that transfer within
correctional facilities governed by the same governmental
agency will not excuse exhaustion, regardless of whether
the inmate had an opportunity to pursue the remedy while
at the facility where the claim arose.”) (additional citations
omitted).
Plaintiff testified at his deposition that he did not attempt to
follow up on his grievance after being transferred to Cayuga.
Plaintiff offered conflicting testimony for his reasoning
behind declining to follow up once he reached Cayuga. First,
plaintiff testified that he did not follow up at Cayuga regarding
his grievance because he did not know he was supposed to
follow up there. However, he later testified that he decided
not to pursue his grievance once at Cayuga because he
wanted to be able to serve out his time at Cayuga without
being “noticed.” Dkt. No. 26-5 at 101. Second, plaintiff
made clear that he was not in any fear while incarcerated
at Cayuga. Thus, he was not prevented from pursuing his
grievance at Cayuga. Further, as noted, plaintiff received the
Superintendent's denial of his grievance on May 5, 2022,
and remained at Gouverneur until June 13, 2022, giving him
sufficient time to pursue an appeal at Gouverneur before his
transfer. See Dkt. No. 26-2 at 2. Plaintiff's conclusory and
conflicting statements that he did not know how to use the
grievance procedure fails to demonstrate that, as a result of his
transfer to Cayuga, administrative remedies were so opaque
they were rendered incapable of use.
6. Grievance Process as a Dead End
*12 Plaintiff testified that he did not know the next step
he was supposed to take when he did not receive a response
from his alleged appeal to CORC. Plaintiff further testified
that he filed a fifth grievance regarding “medical” while
at Gouverneur but that he did not receive a response. Dkt.
No. 26-5 at 94-95. Applying a very liberal reading of
this testimony, plaintiff's statements could be interpreted as
arguing that the grievance procedure operated as a “dead
end.” However, plaintiff's testimony on this point fails to raise
a material question of fact for the reasons discussed below.
Courts have rejected arguments that the grievance procedure
was a “dead end” where the plaintiffs chose to participate
in the grievance procedure in some way, even in unrelated
matters, concluding that such participation demonstrates that
the plaintiffs did not view the grievance procedure as a
dead end. See Luke Matthews, et al. v. L. Sweeny, Clinton
Corr. Sergeant, et al., No. 9:17-CV-0503 (GTS/ML), 2025
WL 447734, at *7, *7 n.13 (N.D.N.Y. Feb. 10, 2025)
(citing Walker v. Ball, 16-CV-0437, 2018 WL 1415212,
at *5 (N.D.N.Y. Feb. 16, 2018)) (“While Plaintiff did not
file any grievances regarding the alleged misconduct of
Noonan and St. Johns ..., he did file grievances regarding
other issues .... This shows that Plaintiff did not view the
filing of grievances as a dead end.”), report recommendation
adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (and
others); see Barrett v. Ballard, No. 9:23-CV-113 (DNH/
DJS), 2024 WL 4627511, at *4 (N.D.N.Y. Oct. 4, 2024),
report and recommendation adopted, No. 9:23-CV-113, 2024
WL 4627801 (N.D.N.Y. Oct. 30, 2024) (“Plaintiff makes no
argument that the grievance process was unavailable to him
and cannot carry that burden especially since he claims that
he did, in fact pursue, at least at the outset, to resolve this
issue through the grievance process.”). Here, plaintiff filed
at least four grievances regarding the issues underlying this
complaint; thus, any argument suggesting that he believed the
grievance procedure to be a dead end is without force.
To the extent plaintiff's testimony that he filed a fifth
grievance that went “missing” could suggest that he believed
the grievance process was a dead end, “Courts within the
Second Circuit have continuously held that ‘mere contentions
or speculation of grievances being misplaced by officers do
not create a genuine issue of material fact when there is
no evidence to support the allegations.’ ” Blake v. Porlier,
No. 9:18-CV-1008 (DNH/CFH), 2019 WL 7484052, at
*5 (N.D.N.Y. Oct. 4, 2019) (quoting Rodriguez v. Cross,
No. 9:15-CV-1079 (GTS/CFH), 2017 WL 2791063, at *5
(N.D.N.Y. May 9, 2017) report and recommendation adopted,
2017 WL 1076343 (N.D.N.Y. Mar. 22, 2019)). Plaintiff
offers no proof that he filed a fifth grievance relating to the
matters underlying this suit or any support for his conclusory
claim that the fifth grievance was filed and went missing.
See Rodriguez, 2017 WL 2791063, at *5 n.13 (finding that
the plaintiff's failure to exhaust was not excused because,
although the plaintiff “state[d] that some grievances were
destroyed ... he ha[d] not submitted any copies of these
grievances, nor d[id] he specify when he attempted to file
them.”).
In sum, the undersigned concludes that plaintiff has failed
to demonstrate a material question of fact as to whether
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the grievance process amounted to a “dead end” such that
administrative remedies were unavailable to him.
7. Fear
Plaintiff testified that he was in fear for his life while he was
incarcerated at Gouverneur. See Dkt. No. 26-5 at 99. When
asked for clarification as to whether he was afraid to file a
grievance, plaintiff stated, “Grievance? I was – was more
fearful for my life.” Id. Plaintiff testified, however, that he
was not in fear once he was transferred to Cayuga. See id. at
100. He testified that he did not pursue his grievance after not
receiving a response to his alleged appeal because he did not
know he was “supposed to” but also because he “didn't want
the whole state against me, man. I didn't want to leave one
jail and then go to another jail and I got the police all over me
there neither. So I wanted to like kind of fly under the radar.”
Id. at 101.
*13 Administrative remedies may be unavailable
where “prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860.
However, a generalized fear of retaliation is insufficient
to overcome a failure to exhaust administrative remedies.
Salmon v. Bellinger, No. 9:14-CV-0827 (LEK/DJS), 2016
WL 4411338, at *5 (N.D.N.Y. July 5, 2016). Estoppel is
found where “verbal and physical threats of retaliation,
physical assault, denial of grievance forms or writing
implements, and transfers” occur showing that defendants
acted affirmatively to prevent an inmate from availing him
or herself of the grievance procedures. Id. at *5 (quoting
Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011)).
Pridgen v. Beatie, No. 9:16-CV-535 (DNH/CFH), 2018
WL 1402049, at *8 (N.D.N.Y. Jan. 17, 2018), report and
recommendation adopted, No. 9:16-C-V535 (DNH/CFH),
2018 WL 1394146 (N.D.N.Y. Mar. 19, 2018).
Here, plaintiff's generalized, conclusory arguments about
being in fear while at Gouverneur fail to state a
viable unavailability argument under the “machination,
misrepresentation, or intimidation” exception. Ross, 136 S.
Ct. at 1860. Plaintiff does not assert that any specific
individual at Gouverneur prevented him from filing an
appeal by threatening or intimidating him. Plaintiff offers no
argument or proof that defendants or other prison officials
“affirmatively or misleadingly prevented Plaintiff from filing
the appeal to CORC” or otherwise pursuing his administrative
remedies.” Shabazz, 2023 WL 5779533, at *7. Further, when
asked if he were afraid of filing a grievance, his response
suggested that he was fearful, generally, during his time at
Gouverneur, and suggested that he was not specifically afraid
of proceeding with his grievance. See Dkt. No. 26-5 at 99.
Significantly, the undisputed facts in this case belie any claims
of fear. Plaintiff filed four – and argues he filed five –
grievances at Gouverneur, defeating an argument that he was
too afraid for his life to take advantage of his administrative
remedies. See, e.g., McNab v. Doe, 686 F. App'x 49, 51 (2d
Cir. 2019) (summary order) (affirming summary judgment
dismissing the plaintiff's complaint for failure to exhaust
where although the plaintiff asserted that the defendants tried
to intimidate him because “none of the actions allegedly taken
by the defendants actually prevented [him] from submitting
his complaint letter.”); Riles v. Buchanan, 656 F. App'x
577, 581 (2d Cir. 2016) (summary order) (finding that the
defendants’ alleged threats of retaliation did not interfere
with the plaintiff's exhaustion efforts because, following a
threat, the plaintiff “thereafter submitted ... [a] grievance
in spite of this alleged threat”); Hall v. Annucci, No. 19-
CV-5521 (KMK), 2022 WL 3903255, at *10 (S.D.N.Y.
Aug. 30, 2022), aff'd, No. 22-2031, 2023 WL 7212156 (2d
Cir. Nov. 2, 2023) (“[w]here an inmate files a grievance
or appeals a grievance determination after having received
threats or suffered retaliation, the inmate's conduct ‘directly
cuts against’ ... [an] argument that ... administrative remedies
were unavailable.”) (citation omitted).
*14 Accordingly, the undersigned concludes that
plaintiff fails to demonstrate that administrative remedies
were unavailable to him on the ground that “prison
administrators thwart[ed] [him] from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Ross, 578 U.S. at 643-44.
C. Doe Defendants
The undersigned observes that plaintiff has failed to identify
or serve process on John Does 1-8, as required by Rule 4(m)
and N.D.N.Y. Local Rule 4.1, despite having ample time
and opportunity. Plaintiff commenced this action on March
8, 2023. See Compl. Discovery in this action expired in
March 2024. See Dkt. No. 22. Plaintiff has had a substantial
amount of time to identify and serve the Doe defendants,
“and the Court is under no obligation to extend the deadline
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indefinitely.” Santiagocruz v. Doe #4, No. 9:21-CV-0806
(TJM/ML), 2023 WL 9600956, at *1 n.1 (N.D.N.Y. Dec.
15, 2023), report and recommendation adopted sub nom.
Santiagocruz v. Gordon, No. 9:21-CV-806, 2024 WL 532499
(N.D.N.Y. Feb. 8, 2024) (citation omitted); see Waldo v.
Goord, 97-CV-1385, 1998 WL 713809, at *5 (N.D.N.Y. Oct.
1, 1998) (Kahn, J.) (dismissing claims against Doe defendants
pursuant to Fed. R. Civ. P. Rule 4(m) where the pro se
plaintiff failed to serve the Doe defendants within a year of
commencing the action).
“All discovery is complete and thus, [P]laintiff's failure to
identify the ‘John Doe’ defendant[s] mandates dismissal.”
Epps v. City of Schenectady, No. 10-CV-1101, 2013 WL
717915, at *5 (N.D.N.Y. Feb. 27, 2013). Accordingly, the
undersigned recommends sua sponte dismissal of defendants
John Does 1-8 from this action without prejudice.
D. Dismissal
The Second Circuit has “recognized that failure to exhaust
administrative remedies is usually a ‘curable, procedural
flaw’ that can be fixed by exhausting those remedies and
then reinstituting the suit.” Neal v. Goord, 267 F.3d 116,
123 (2d Cir. 2001) (quoting Snider v. Melindez, 199 F.3d
108, 111-12 (2d Cir. 1999)), overruled on other grounds
by Porter v. Nussle, 534 U.S. 516 (2002). Thus, where
a claim is dismissed for failure to exhaust administrative
remedies, dismissal without prejudice is appropriate if the
time permitted for pursuing administrative remedies has not
expired. Berry v. Kerik, 366 F.3d 85, 86-87 (2d Cir. 2004); see
Pettus v. McCoy, 04-CV-0471, 2006 WL 2639369, at *1-2
(N.D.N.Y. Sept. 13, 2006) (dismissing a complaint without
prejudice for failure to exhaust). However, if a prisoner has
failed to exhaust available administrative remedies and the
time in which to exhaust has expired, it is proper for the court
to dismiss the complaint with prejudice because any attempt
to exhaust would be futile. See Berry v. Kerik, 366 F.3d 85,
86 (2d Cir. 2004); see, e.g., Hilbert v. Fischer, 12-CV-3843,
2013 WL 4774731, at *7 (S.D.N.Y. Sept. 5, 2013) (collecting
cases).
Here, plaintiff received the Superintendent's denial on May
3, 2022, and he commenced this action March 8, 2023. As
plaintiff's time to exhaust his administrative remedies has
expired, it is recommended that his complaint be dismissed
with prejudice.
IV. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
RECOMMENDED, that defendants’ West and Fenlong's
Motion for Summary Judgment, Dkt. No. 26, be GRANTED
in its entirety with prejudice; and it is further
*15 RECOMMENDED, that the claims against the
Doe defendants be DISMISSED without prejudice based
on plaintiff's failure to timely identify and serve those
defendants; and it is
ORDERED, that the Clerk serve this Report-
Recommendation & Order on the parties in accordance with
the Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. 636(b)(1) and Local Rule 72.1(c),
the parties have fourteen days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN FOURTEEN (14) DAYS
WILL PRECLUDE APPELLATE REVIEW. See Roldan
v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v.
Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a),
6(e). 7
All Citations
Slip Copy, 2025 WL 1033787
Footnotes
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1 Unless otherwise noted, the Court has provided plaintiff with copies of all unpublished cases cited herein.
2 As in this case,
There are ... special procedures that may be used when the grievance involves a claim of staff misconduct.
Id. § 701.8. A grievance alleging staff misconduct, once it is recorded and given a number, must be sent
directly to the Superintendent, and the Superintendent must issue a decision within twenty-five days. Id. §
701.8(f). If the grievant wishes to appeal a decision by the Superintendent to CORC, he must file a notice
of decision to appeal with the inmate grievance clerk at the bottom of the Superintendent's decision within
seven days of receipt of the decision. Id. § 701.8(h). CORC is required to render a written decision within
thirty calendar days of receipt of the appeal. Id. § 701.8(i) (incorporating § 701.5).
Ayers v. Trombley, No. 9:17-CV-01229 (DNH/TWD), 2019 WL 3892864, at *10 (N.D.N.Y. July 8, 2019), report
and recommendation adopted, No. 9:17-CV-1229 (DNH/TWD), 2019 WL 3891027 (N.D.N.Y. Aug. 19, 2019).
3 As concluded, supra, the undersigned has found that plaintiff failed to demonstrate that he appealed the
Superintendent's denial to CORC.
4 The regulations provide that an individual who wishes to appeal a Superintendent's denial in the expedited
procedure has seven calendar days after receipt of the denial to do so. See 7 N.Y.C.R.R. 701.6(h)(2).
The Superintendent's denial of his grievance is dated May 5, 2022. It is unclear when he received the
Superintendent's denial, but the undersigned recognizes that his training likely came after the seven-day
period had expired. However, plaintiff demonstrates that his absence of formal training at Gouverneur did not
stop him from successfully navigating the grievance procedure at the earlier stages.
5 A request for an extension of time to file an appeal to CORC may be requested in writing, but “an exception
to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence.”
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(1)(i)(a), (b). An inmate may choose to file a separate grievance
if a request for an extension is denied. See id. § 701.6(1)(i)(b). Plaintiff completed the shop facility orientation
on May 22, 2022, within forty-five days after the alleged occurrence on April 11, 2022. Thus, even if he was
untrained on how proceed with the grievance process after receiving the Superintendent's denial until after he
completed training, he still had time to request an extension to do so after receiving training. In such training,
he would have likely also been advised to write to CORC or the IGRC if he did not receive confirmation of
receipt of an appeal.
6 Further, in some cases addressing unavailability when an appeal to CORC is unanswered, the court found
administrative remedies unavailable where the inmate plaintiff was transferred before receiving a response;
here, however, plaintiff received the Superintendent's denial before being transferred and remained at
Gouverneur for over a month after receipt of the denial. See, e.g., Robinson v. Ballard, 9:13-CV-01213 (TJM/
TWD), 2017 WL 979047, at *12 (N.D.N.Y. Feb. 3, 2017), report and recommendation adopted, 2017 WL
979039 (N.D.N.Y. Mar. 13, 2017) (citing Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016)) (“as in Williams,
Plaintiff in this case was transferred to a new facility before receiving a response to his grievance and failed
to receive a response after the transfer.”); See Dkt. No. 26-2 at 2.
7 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 & Order was mailed to you to serve and file objections. See FED. R. CIV.
P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline
is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. See id. § 6(a)(1)(C).
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Jackson v. West, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 814966
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Craig A. JACKSON, Plaintiff,
v.
Sergeant WEST, et al., Defendants.
9:23-CV-306 (LEK/PJE)
|
Signed March 14, 2025
Attorneys and Law Firms
Craig A. Jackson, Moravia, NY, Pro Se.
Alexandra L. Galus, Anthony Huntley, Lauren Rose
Rosenberg, NYS Office of the Attorney General, Albany, NY,
for Defendants Sergeant West, D. Fenlong.
MEMORANDUM-DECISION AND ORDER
LAWRENCE E. KAHN, United States District Judge
I. INTRODUCTION
*1 Plaintiff Craig A. Jackson brings this pro se action
pursuant to 42 U.S.C. § 1983 against Defendants Sergeant
West, D. Fenlong, and eight John Does, asserting violations
of his constitutional rights. Dkt. No. 1. Defendants West
and Fenlong filed a motion for summary judgment, arguing
that Plaintiff failed to exhaust his administrative remedies
before commencing this action. Dkt. No. 26 (“Motion”). On
February 20, 2025, the Honorable Paul Evangelista, United
States Magistrate Judge, issued a report and recommendation
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d),
recommending that the Motion be granted. Dkt. No. 30
(“Report and Recommendation”).
No party has filed objections to the Report and
Recommendation. For the reasons that follow, the Court
adopts the Report and Recommendation in its entirety.
II. BACKGROUND
The Court assumes familiarity with the factual background
detailed in the Court's April 18, 2023 Memorandum-Decision
and Order. See Dkt. No. 4 at 2–3.
In his analysis, Judge Evangelista first noted that Plaintiff
filed four grievances relating to the staff assault that occurred
in April 2022. Id. at 8. Those grievances were consolidated
into one, id., which was denied on May 5, 2022, id. at 9. Judge
Evangelista then explained that Plaintiff was informed that he
could appeal the decision to the Superintendent of his facility,
but the records reveal that he never did so. Id. While Plaintiff
testified that he did file an appeal, Judge Evangelista found
Plaintiff's testimony to be “littered with contradictions and
lack[ing] support,” such that there was no genuine dispute of
fact on this issue. Id. at 15. He concluded that Plaintiff did not
exhaust his administrative remedies. Id. at 17.
Judge Evangelista then examined whether the grievance
process was “unavailable” to Plaintiff, such that Plaintiff
may be excused from the exhaustion requirement. Id. at
19–31. First, Judge Evangelista found that “[P]laintiff has
failed to demonstrate that his lack of understanding of [the]
grievance process amounts to the grievance process being
so opaque to be rendered incapable of use.” Id. at 25–26.
Next, Judge Evangelista found that “[P]laintiff has failed
to demonstrate a material question of fact as to whether
the grievance process amounted to a ‘dead end’ such that
administrative remedies were unavailable to him.” Id. at 29.
Lastly, Judge Evangelista explained that “Plaintiff fails to
demonstrate that administrative remedies were unavailable
to him on the ground that prison administrators thwarted
him from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 31
(cleaned up).
Judge Evangelista thus recommended that the Motion be
granted in its entirety. Id. at 33. Further, Judge Evangelista
recommended that the Court sua sponte dismiss Plaintiff's
claims against the eight John Does, because discovery has
completed and Plaintiff failed to identify the defendants. Id.
at 31–32.
III. LEGAL STANDARD
“Within fourteen days after being served with a copy [of
the Magistrate Judge's report and recommendation], any
party may serve and file written objections to such proposed
findings and recommendations as provided by rules of court.”
28 U.S.C. § 636(b)(1)(C); see also L.R. 72.1. However, if
no objections are made, a district court need only review a
report and recommendation for clear error. See DiPilato v.
7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009)
(“The district court may adopt those portions of a report and
recommendation to which no timely objections have been
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Jackson v. West, Slip Copy (2025)
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made, provided no clear error is apparent from the face of
the record.”). Clear error “is present when upon review of
the entire record, the court is left with the definite and firm
conviction that a mistake has been committed.” Rivera v. Fed.
Bureau of Prisons, 368 F. Supp. 3d 741, 744 (S.D.N.Y. 2019)
(cleaned up). Upon review, a 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).
IV. DISCUSSION
*2 No party objected to the Report and Recommendation
within fourteen days after being served with a copy
of it. Accordingly, the Court reviews the Report and
Recommendation for clear error. See DiPilato, 662 F. Supp.
2d at 339. Having found none, the Court approves and adopts
the Report and Recommendation in its entirety.
V. CONCLUSION
Accordingly, it is hereby:
ORDERED, that the Report and Recommendation, Dkt. No.
30, is APPROVED and ADOPTED in its entirety; and it
is further
ORDERED, that the motion for summary judgment, Dkt. No.
26, is GRANTED; and it is further
ORDERED, that the Clerk close this action; and it is further
ORDERED, that the Clerk serve a copy of this
Memorandum-Decision and Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 814966
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Johnson v. Fraizer, Not Reported in Fed. Supp. (2016)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 7012961
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Andre A. JOHNSON, Plaintiff,
v.
Correctional Sgt. J. FRAIZER, Correctional Officer L.
DiRienzo and Saj, Deputy Superintendent, Defendants.
16-CV-6096 CJS
|
Signed 12/01/2016
Attorneys and Law Firms
Andre A. Johnson, Attica, NY, pro se.
Hillel David Deutsch, NYS Attorney General's Office,
Department of Law, Rochester, NY, for Defendants.
DECISION and ORDER
CHARLES J. SIRAGUSA, United States District Judge
INTRODUCTION
*1 Andre Johnson (“Plaintiff” or “Johnson”), a prison
inmate in the custody of the New York State Department
of Corrections and Community Services (“DOCCS”), brings
this action pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his federal constitutional rights by, inter
alia, retaliating against him and violating his procedural due
process rights. Now before the Court is Defendants' motion
to dismiss the Amended Complaint, for failure to exhaust
administrative remedies. The application is granted.
BACKGROUND
The operative pleading in this action is Plaintiff’s Amended
Complaint. Generally, the Amended Complaint alleges that,
at Livingston Correctional Facility (“Livingston”), after
Plaintiff filed complaints against defendant Corrections
Sergeant Fraizer (“Fraizer”), Fraizer conspired with
defendant Corrections Officer L. DiRienzo (“DiRienzo”),
who filed false misbehavior reports against him; and that
thereafter, defendant Deputy Superintendent Saj (“Saj”)
conducted a disciplinary hearing in which he violated
Plaintiff’s right to procedural due process. According to
the pleading, Saj found Plaintiff guilty of the disciplinary
infractions and sentenced him to period of confinement in the
Special Housing Unit (“SHU”).
The Amended Complaint contains certain allegations
regarding Plaintiff’s attempts to exhaust his administrative
remedies before commencing this action. In pertinent part, the
pleading makes the following statements, which are listed in
the order in which they appear:
That because of the retaliatory actions
of the Defendants the Plaintiff was also
deprived of his rights to appeal the
disposition of the Tier II hearing.
***
That because of the Defendants
retaliatory actions the Plaintiff has
been harassed, threats made towards
his life, has been subjected to unfair
and impartial hearings[.]
***
The Plaintiff has exhausted his
administrative remedies before filing
this claim, by filing formal complaints
to the Governor of the State of New
York, to the Acting Commissioner
of D.O.C.C.S., to the Superintendent
of Livingston Correctional Facility,
as well as [the] Grievance Office of
Livingston Correctional Facility, and
the Internal Affairs bureau to no avail.
Amended Complaint. However, the amended pleading also
indicates that the alleged constitutional violations occurred in
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Johnson v. Fraizer, Not Reported in Fed. Supp. (2016)
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mid– and late-January, 2016, and that Plaintiff commenced
this action a mere three weeks later, on February 17, 2016.
As an aside, Plaintiff’s contention in the Amended Complaint,
that he exhausted his administrative remedies before
commencing this action, is at odds with his statements in the
original Complaint. Specifically, in the original Complaint,
which was filed less than a month prior to the Amended
Complaint, and which was sworn to by Plaintiff under penalty
of perjury, he stated that he neither grieved his claims,
nor appealed any adverse decision concerning the grievance
process. Further, in response to the question, on the form
complaint that Plaintiff used to draft the original complaint,
“If you did not exhaust your administrative remedies, state
why you did not do so,” Plaintiff wrote, “N/A.” 1
*2 On September 30, 2016, Defendants filed the subject
motion to dismiss the Amended Complaint, for failure to
exhaust administrative remedies. Defendants contend that
the allegations in the Amended Complaint establish that
Plaintiff failed to exhaust his administrative remedies before
commencing this action. In that regard, Defendants point out
that while Plaintiff claims that he took certain actions, such as
sending complaints to the Governor of the State of New York,
such actions do not amount to exhaustion under the PLRA:
In the matter before the Court, the
complaint states that Plaintiff did
not file a grievance, appeal to the
superintendent and then appeal to [the
Central Office Review Committee]
[“]CORC[”], as he is required to do.
Instead, Plaintiff claims to have simply
written a letter to various different
agencies, waited approximately ten
days, and then filed suit. ... He
simply refused to wait for the relevant
decisions to come down and appeal
them; instead he attempted to file his
grievance and appeals all at the same
time. 2
Defendants further contend that while the Amended
Complaint alleges that Plaintiff was “deprived of his rights to
appeal the disposition of the Tier II hearing,” it “provides no
further explanation.” 3
In opposition to Defendants' motion to dismiss, Plaintiff filed
a response [#33], which makes the following arguments: 1) on
January 29, 2016, Plaintiff “filed an appeal” of his convictions
at the Tier III disciplinary hearing, but “said Appeal was
not allowed to leave the Facility”; 2) the results of the tier
disciplinary hearing could not be “grieved” through the IGP;
3) Plaintiff was not required to exhaust his administrative
remedies because in this action he is seeking only money
damages.
Because Plaintiff is a pro se inmate, the Court also takes
judicial notice of the fact that the instant lawsuit is not the
only one that he has filed in this Court concerning the events
in this action. 4 For example, on June 20, 2016, Plaintiff
filed an action, entitled “Johnson v. Annucci, et al.,” 16-
CV-6417 CJS, in which he refers to some of the same events
about which he complains in this action. Particularly, in the
Amended Complaint [#7] in that action, Plaintiff clarifies,
somewhat, his cryptic statement, in the amended complaint,
that he was “deprived” of the right to appeal, as well as the
related statement, made in response to Defendants' motion to
dismiss this action, that he attempted to appeal his disciplinary
conviction, but the appeal was “not allowed to leave the
facility”:
[O]n January 29, 2016, the Plaintiff
submitted his appeal while being
confined in S.H.U. at the Livingston
Correctional Facility, by placing in
the hands of the 11-to-7 officer
on duty said appeal in a “stamped
envelope” addressed to the Office of
the Director of the Special Housing/
Inmate Disciplinary in Albany N.Y.
Also, sending a copy of the appeal
to the office of the Governor of the
State of New York. The Defendants
refused to allow any and all legal
correspondence of the Plaintiff to leave
the facility in an attempt to hid[e] the
misconduct of Officials[.]
16-CV-6417, Docket No. [#7] at p. 5
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Johnson v. Fraizer, Not Reported in Fed. Supp. (2016)
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PRINCIPLES OF LAW
*3 At the outset, since Johnson is proceeding pro se, his
papers “must be construed liberally and interpreted to raise
the strongest arguments that they suggest.” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (citation omitted).
The Prison Litigation Reform Act (“PLRA”), 42
U.S.C. § 1997e(a), requires prison inmates to exhaust
such administrative remedies “as are available” before
commencing an action “with respect to prison conditions
under [42 U.S.C. §] 1983.” “The PLRA requires proper
exhaustion, which means using all steps that the prison
grievance system holds out, and doing so properly (so that the
prison grievance system addresses the issues on the merits.
Untimely or otherwise procedurally defective administrative
grievances or appeals fail to satisfy PLRA’s exhaustion
requirements.” Riles v. Buchanan, ––– Fed. Appx. ––––, 2016
WL 4572321 at *1 (2d Cir. Sep. 1, 2016) (citations and
internal quotation marks omitted).
However, the PLRA exhaustion requirement may be excused
where administrative remedies are not “available,” and there
are at least three circumstances under which such remedies
may be considered unavailable:
First, an administrative remedy may
be unavailable when it operates as a
simple dead end—with officers unable
or consistently unwilling to provide
any relief to aggrieved inmates.
Second, an administrative scheme
might be so opaque that it becomes,
practically speaking, incapable of use.
In other words, some mechanism
exists to provide relief, but no
ordinary prisoner can discern or
navigate it. Third, an administrative
remedy may be unavailable
when prison administrators thwart
inmates from taking advantage
of a grievance process through
machination, misrepresentation, or
intimidation.
Williams v. Correction Officer Priatno, 829 F.3d 118, 123–
24 (2d Cir. 2016) (quoting Ross v. Blake, ––– U.S. ––––,
136 S.Ct. 1850, 1859-1860 (2016); internal quotation marks
omitted).
“Inmates must exhaust their administrative remedies even if
they are seeking only money damages that are not available
in prison administrative proceedings.” Geer v. Chapman, No.
915CV952GLSATB, 2016 WL 6091699, at *3 (N.D.N.Y.
Sept. 26, 2016) (citing Giano v. Goord, 380 F.3d 670, 675-76
(2d Cir. 2004)), report and recommendation adopted, No.
915CV952GLSATB, 2016 WL 6090874 (N.D.N.Y. Oct. 18,
2016).
For retaliation claims, an New York State inmate must exhaust
his administrative remedies by utilizing New York’s three-
tiered Inmate Grievance Program (“IGP”) procedures:
DOC[C]S' Inmate Grievance Program
(“IGP”) has a regular three-tiered
process for adjudicating inmate
complaints: (1) the prisoner files a
grievance with the Inmate Grievance
Resolution Committee (“IGRC”), (2)
the prisoner may appeal an adverse
decision by the IGRC to the
superintendent of the facility, and
(3) the prisoner then may appeal an
adverse decision by the superintendent
to the Central Officer Review
Committee (“CORC”).
Quezada v. Ercole, No. 09CIV2832DLC, 2011 WL 3251811,
at *4 (S.D.N.Y. July 29, 2011) (citing Espinal v. Goord, 554
F.3d 216, 224 (2d Cir. 2009)).
On the other hand, an inmate exhausts a procedural due
process claim, arising from a prison disciplinary hearing, by
completing the disciplinary administrative appeal process.
See, Davis v. Jackson, 2016 WL 5720811 at * 7 (Noting
that the filing of an administrative appeal from a disciplinary
hearing is “the proper mode of exhaustion” for a procedural
due process claim arising from the disciplinary hearing).
*4 Where the inmate is asserting both retaliation claims and
procedural due process claims, he must separately exhaust
both types of claim, using the procedure appropriate to each
type of claim. See, Davis v. Jackson, 2016 WL 5720811
at * 7 (Observing that filing an administrative appeal from
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an underlying disciplinary proceeding was “an inappropriate
means of exhaustion for Plaintiff’s retaliation claims.”)
(collecting cases); see also, Washington v. Chaboty, No. 09
CIV. 9199 PGG, 2015 WL 1439348, at *7 (S.D.N.Y. Mar.
30, 2015) (“In certain circumstances, however, courts have
deemed a disciplinary appeal inadequate to exhaust a claim
under the PLRA. Inmate Grievance Program exhaustion
has been required, for example, where an inmate alleges
retaliation, including retaliation based on the filing of an
allegedly false misbehavior report.”) (citation omitted).
The PLRA’s exhaustion requirement is an affirmative
defense, not a jurisdictional requirement:
The Second Circuit has made clear that, in this
context, “administrative exhaustion is not a jurisdictional
predicate,” but rather, “an affirmative defense.” Giano v.
Goord, 380 F.3d 670, 675 (2d Cir. 2004). Accordingly,
“defendants bear the burden of proof[,] and prisoner
plaintiffs need not plead exhaustion with particularity.”
McCoy v. Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y.
2003)[.]
France v. Cty. of Westchester, No. 12-CV-5576 (KMK), 2016
WL 1270259, at *4 (S.D.N.Y. Mar. 30, 2016) (additional
citations omitted). Consequently, as Defendants admit,
dismissal under Rule 12 for failure to exhaust administrative
remedies is only appropriate where such failure is “clear”
from the face of the complaint. On this point, the Second
Circuit recently stated:
Failure to exhaust administrative
remedies is an affirmative defense
under the PLRA, not a pleading
requirement. Accordingly, inmates
are not required to specially plead
or demonstrate exhaustion in their
complaints. However, a district court
still may dismiss a complaint for
failure to exhaust administrative
remedies if it is clear on the face
of the complaint that the plaintiff
did not satisfy the PLRA exhaustion
requirement.
Williams v. Correction Officer Priatno, 829 F.3d at 122
(citations omitted).
DISCUSSION
Defendants contend that the action should be dismissed
pursuant to Fed. R. Civ. P. 12, because it is evident from the
face of Johnson’s Amended Complaint [#17] that he failed
to exhaust his administrative remedies before commencing
this action. The Court agrees with Defendants that, to the
extent that Plaintiff maintains that he did not need to exhaust
his administrative remedies because he is seeking money
damages in this action, his argument lacks merit. Similarly,
Plaintiff’s argument that his disciplinary conviction is a
“non-grievable issue” is, while true, irrelevant; although such
convictions cannot be “grieved” through the IGP, they can be,
and must be, administratively exhausted through the appeals
process, as discussed above. Additionally, Plaintiff obviously
understood that fact, since he claims that he attempted to
exhaust his procedural due process claim by appealing his
disciplinary conviction.
The Court also tends to agree with Defendants' argument
that, since Plaintiff filed this action a mere three weeks after
the events at issue, it is probable that he simply skipped the
grievance/appeal stage and came directly to Federal Court.
Certainly, Plaintiff’s original Complaint in this action tends
to support such a view.
In opposition to Defendants' arguments, Plaintiff is essentially
left with two contentions. First, he states that he attempted
to mail an appeal of his disciplinary conviction, but
unidentified persons prevented the envelope from leaving
Livingston. Indeed, Plaintiff even more broadly states, “The
Defendants refused to allow any and all legal correspondence
of the Plaintiff to leave the facility in an attempt to
hid[e] the misconduct of Officials[.]” (emphasis added).
The Court liberally construes such statements to mean that
the administrative appeals process was not “available” to
Plaintiff, because corrections staff “thwarted” his efforts.
However, Plaintiff’s contention on this point is not plausible,
and therefore need not be accepted as true. 5 First and
foremost, Plaintiff makes only a conclusory statement that
his mailing was not allowed to leave the facility, without
offering any explanation for why he believes that. Meanwhile,
his contention that all of his legal mail was similarly
purloined is belied by his admission that he was able to
send other complaints about the matter to various New York
State officials at around the same time. Plaintiff offers no
explanation for why Livingston staff would prevent him from
mailing that particular appeal, but allow him to mail out all
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his other complaints, including the original complaint in this
action.
*5 Lastly, Plaintiff claims that Livingston staff harassed him
and threatened his life, after he filed other grievances. The
Court liberally construes this statement as an argument that
the IGP procedures were not “available” to him, due to threats
from corrections staff. However, the Court does not find this
allegation plausible. To begin with, the allegation itself is
entirely conclusory, since it does not indicate who threatened
him, when he was threatened, or how he was threatened.
Moreover, the alleged threats clearly did not dissuade Plaintiff
from making and sending a wide variety of other complaints
about Livingston staff to New York State officials, including
officials at Livingston. See, Amended Complaint (“The
Plaintiff has exhausted his administrative remedies before
filing this claim, by filing formal complaints to the Governor
of the State of New York, to the Acting Commissioner of
D.O.C.C.S., to the Superintendent of Livingston Correctional
Facility, as well as [the] Grievance Office of Livingston
Correctional Facility, and the Internal Affairs bureau to no
avail.”); see also, Riles v. Buchanan, 2016 WL 4572321 at
*3 (“Nor did DOC officials' alleged threats of retaliation
interfere with his exhaustion efforts....He was not deterred
from exhausting; he simply did not exhaust in accordance
with the procedures.”).
For all of these reasons, the Court finds that it is clear, from
the face of Plaintiff’s Amended Complaint, that he failed to
exhaust his administrative remedies before commencing this
action, in violation of 42 U.S.C. § 1997e(a).
CONCLUSION
Defendants' motion to dismiss [#30] is granted, and this action
is dismissed without prejudice. The Clerk of the Court is
directed to close this action.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 7012961
Footnotes
1 “A statement in a withdrawn complaint that is superseded by an amended complaint without the statement is
no longer a conclusive judicial admission[, though] the factfinder may very well find that such a contradictory
statement reduces the credibility of the witness[.]” Tho Dinh Tran v. Alphonse Hotel Corp., 281 F.3d 23, 32
(2d Cir. 2002) overruled on other grounds by Slayton v. Am. Exp. Co., 460 F.3d 215 (2d Cir. 2006).
2 Def. Memo of Law [#30-1] at pp. 3-4.
3 Def. Memo of Law [#30-1] at p. 1.
4 “In deciding a motion to dismiss a pro se complaint, it is appropriate to consider certain materials outside the
complaint to the extent that they are consistent with the allegations in the complaint.” Davis v. Jackson, Case
No. 15-CV-5359 (KMK), 2016 WL 5720811 at *4 (S.D.N.Y. Sep. 30, 2016) (citation and internal quotation
marks omitted).
5 In Williams v. Priatno, 829 F.3d at 124, n. 3, the Second Circuit explained why it found an SHU inmate’s
contention, that a corrections officer never filed his grievance, to be plausible. Here, there is no such
supporting facts to make Johnson’s contention plausible. Instead, there is evidence tending to refute his
assertion.
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Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018)
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2018 WL 4732755
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Alfredo LEWIS, Plaintiff,
v.
Lynn WASIELEWSKI, Rebecca McDaniel, Paul
Burke, Dennis Becker and Sabato Parisi, Defendants.
15-CV-0168-RJA-MJR
|
Signed 07/09/2018
|
Filed 07/10/2018
Attorneys and Law Firms
Alfredo Lewis, Uniondale, NY, pro se.
David J. Sleight, Office of the Attorney General, Buffalo, NY,
for Defendants.
REPORT AND RECOMMENDATION
HONORABLE MICHAEL J. ROEMER, United States
Magistrate Judge
INTRODUCTION
*1 This case has been referred to the undersigned pursuant
to Section 636(b)(1) of Title 28 of the United States Code, by
the Honorable Richard J. Arcara, for hearing and reporting on
dispositive motions for consideration by the District Court.
Before the Court is defendants' motion for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure.
(Dkt. No. 61). For the following reasons, it is recommended
that defendants' motion for summary judgment be granted and
the complaint dismissed.
PROCEDURAL BACKGROUND
Plaintiff Alfredo Lewis (“plaintiff”), an inmate in the care and
custody of the New York State Department of Corrections
and Community Supervision (“DOCCS”) who is proceeding
pro se, claims that his constitutional rights were violated, in
contravention of Section 1983 of the Title 28 of the United
States Code, when he was retaliated against and assaulted
as a result of writing letters of complaint while incarcerated
at Gowanda Correctional Facility (“Gowanda”). (Dkt. No.
1). Plaintiff sued Gowanda and a number of individuals
employed by DOCCS as counselors and correction officers
during the relevant time period. (Dkt. No. 1). On August
28, 2015, the Court granted plaintiff’s request to proceed in
forma pauperis. (Dkt. No. 10). The Court also dismissed, with
prejudice, plaintiff’s claims against Gowanda, Supervisor
Counselor Cabeara, and all other individual defendants in
their official capacities. (Id.). The remaining defendants, sued
in their individual capacities, include Lynn Wasielewski,
Rebecca McDaniel, Paul Burke, Dennis Becker, and Sabato
Parisi. In addition to the complaint, plaintiff submitted a
number of other documents and exhibits in support of his
claims. (Dkt. Nos. 11, 13, 14, 22 and 33). Defendants filed
answers to the complaint and the Court held a preliminary
pretrial conference on August 16, 2016, at which time it
entered a Case Management Order. (Dkt. Nos. 25, 28, 31, 34,
37, 39). The parties proceeded with discovery which included
Rule 26 disclosures, document and interrogatory requests by
plaintiff, and a deposition of plaintiff by defendants. (Dkt.
Nos. 40, 43, 48, 58, 64).
Defendants filed the instant motion for summary judgment on
November 26, 2017. (Dkt. Nos. 61-63). Plaintiff submitted a
number of responses in opposition to the motion (Dkt. Nos.
65, 66, 69), and defendants filed a reply on December 22,
2017 (Dkt. No. 67).
RELEVANT FACTS
At the time of the incidents relevant to this lawsuit, plaintiff
was an inmate in the care and custody of DOCCS. 1 (Dkt.
No. 62, ¶¶ 1-2; Dkt. No. 1, pg. 2). Also at the time of the
events alleged in the complaint, defendant Lynn Wasielewski
was employed by DOCCS as a social worker at Gowanda,
defendant Rebecca McDaniel was employed by DOCCS as an
Offender Rehabilitation Coordinator at Gowanda, defendants
Paul Burke and Dennis Becker were employed by DOCCS
as correction officers at Gowanda, and defendant Sabato
Parisi was employed by DOCCS as a correction sergeant at
Gowanda. (Dkt. No. 62 at ¶¶ 3-7; Dkt. No. 1, pg. 2).
*2 Plaintiff’s Arrival at Gowanda
Plaintiff was transferred to Gowanda from Bare Hill
Correctional Facility on or around January 20, 2015. (Dkt.
No. 62-2; Dkt. No. 68, pg. 8). The conviction that resulted
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in plaintiff’s placement in DOCCS custody at that time was
stalking in the second degree. (Dkt. No. 68, pg. 5) Plaintiff
testified that upon arrival at Gowanda, he learned that he
had been transferred there in order to participate in the Sex
Offender Treatment Program (“SOP”). (Id. at 10). Plaintiff
was interviewed by McDaniel, a counselor assisting with
the SOP, on the day he arrived at Gowanda. (Id. at 8, 11).
Plaintiff testified that he informed McDaniel that because he
was not incarcerated for a sex offense, he was not required
to complete the SOP. (Id.). Plaintiff contends that McDaniel
informed him that unless he signed a paper enrolling himself
in the SOP, he would be required to serve his maximum
sentence of incarceration. (Id. at 9-11). Plaintiff emphasized
to McDaniel that the SOP was not consistent with his “merit
board” and that it would interfere with his ability to enroll
in other programs. 2 (Id. at 9, 11). Plaintiff indicates that
McDaniel became very agitated with him during the interview
as result of his opposition to participate in the SOP. (Id. at
11-12). Nonetheless, plaintiff was enrolled in the SOP and
began participating. (Dkt. No. 66, pg. 21; Dkt. No. 64, pgs.
27, 31).
In early February of 2015, plaintiff wrote letters of complaint
to Cabrera and Wasielewski. (Dkt. No. 1, pgs. 3-5; Dkt.
No. 69, pgs. 9-18). Plaintiff indicates that both of these
individuals were supervisors at Gowanda. (Id.). Specifically,
plaintiff complained about his placement in the SOP and
McDaniel’s refusal to place him in other programs. (Id.).
He complained that during the SOP meetings McDaniel
asked him inappropriate questions about his parents' sexual
relationship. (Id.). He further complained that McDaniel
would have outbursts during meetings if he or other inmates
did not provide certain answers to her questions, which caused
them to fabricate stories. (Id.).
Alleged Assault on February 6, 2015
Plaintiff contends that on February 6, 2015, Wasielewski
confronted him immediately prior to a SOP meeting. (Dkt.
No. 68, pgs. 14-15; Dkt. No. 1, pg. 6). Wasielewski was upset
that plaintiff “went over her head and McDaniel’s head by
writing to Cabrera.” (Dkt. No. 68, pg. 15). Plaintiff states
that he returned to the meeting and that after it ended, he
was approached by a correction officer who indicated that
a sergeant wanted to speak with him. (Dkt. No. 68, pg. 17;
Dkt. No. 1, pg. 6). Plaintiff reported to Parisi, the correction
sergeant. (Dkt. No. 62, ¶ 15). Plaintiff states that he was then
taken to a stairwell, told to put his hands on the wall, and
handcuffed. (Dkt. No. 68, pg. 18; Dkt. No. pg. 6). Plaintiff
claims that Parisi pulled his hair and repeatedly punched
him in the ribs. (Dkt. No. 68, pgs. 18-19; Dkt. No. pg. 6).
Plaintiff contends that Parisi stated “what the hell do [you]
think [you are] doing writing letters” and accused him of
trying to get staff members fired. (Dkt. No. 68, pg. 19; Dkt.
No. 1, pg. 6). Plaintiff alleges that Parisi stated to him: “I'm
going to put your black ass in the SHU box” and to another
officer in plaintiff’s presence: “[Plaintiff is] lucky he don't put
[plaintiff] somewhere [his] body can't be found.” (Dkt. No.
1, pg. 6).
*3 Plaintiff received an inmate misbehavior report that same
day charging him with harassment, lying and stalking. (Dkt.
No. 68, pg. 17; Dkt. No. 1, pg. 6-7). The misbehavior report,
which was written by K. Hoth and signed by Parisi, alleged
that plaintiff harassed McDaniel and included inappropriate
comments about her in his letters of complaint causing her
to fear for her safety. (Dkt. No. 69, pg. 21-22; Dkt. No.
62-5). Plaintiff contends that the charges were fabricated
by McDaniel and Wasielewski to retaliate against him for
his complaints. (Dkt. No. 1; pg. 6-7). Plaintiff was found
guilty of all three charges at a disciplinary hearing held on
February 20, 2015. (Dkt. No. 68 pg. 24; Dkt. Nos. 62-6,
62-7). Plaintiff was sentenced to ninety days in the special
housing unit (“SHU”) and ninety days loss of recreation,
packages, commissary, phone and special events. (Dkt. No.
62, ¶ 17). Plaintiff appealed the hearing determination to the
DOCSS Commissioner in Albany, New York. (Dkt. No. 68,
pg. 25; Dkt. No. 11). On or around March 6, 2015, plaintiff
was transferred to Upstate Correctional Facility (“Upstate”).
(Dkt. No. 68, pg. 27; Dkt. No. 62-2). As a result of his
appeal, plaintiff’s convictions for making a false statement
and stalking were dismissed on April 23, 2015. (Dkt. No. 68,
pgs. 24-25, 27; Dkt. No. 11). His sentence was reduced to
thirty days in SHU. (Id.).
Use of DOCCS' Grievance Procedures
In his federal court complaint, plaintiff states that he did not
file a grievance regarding the assault on February 6, 2015
“in order to keep [himself] safe from staff.” (Dkt. No. 1,
pg. 7). He further states in the complaint that “Albany was
sent a complaint by mail on what ha[d] taken place.” (Id.).
However, plaintiff provided contradictory testimony during
his deposition. Specifically, plaintiff testified during his
deposition that he filed a grievance about the February 6,
2016 incident but never received a response. (Dkt. No. 68, pg.
20). Plaintiff also testified that he wrote a letter to the State
Commission of Corrections about the incident. (Id. at 21; Dkt.
No. 62-9). When asked for clarification by defense counsel,
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plaintiff testified, “I wrote to grievance on a few different
people ... I don't think I put exactly what happened because I
didn't know if it would actually be, you know, passed off to the
wrong person ... I didn't want to let too much be known after
the threats I was getting.” (Dkt. No. 68, pg. 22). Later during
the same deposition, defense counsel asked plaintiff about
his statement in his federal court complaint indicating that he
did not grieve the incident. Plaintiff testified, in contradiction
to his earlier statement during the deposition that he filed a
grievance, that he did not file a grievance because he was
fearful that officers would further harm him. (Id. at 29-30).
Plaintiff further testified that officers harassed and threatened
him and that when he was being taken to SHU an officer stated
“go ahead and run your mouth” and “your other hand will
be broken.” (Id. at 22-23, 31-32). However, plaintiff did not
specify which officers threatened him nor is it clear exactly
when these alleged threats occurred.
Also during his deposition, plaintiff acknowledged that he
filed the instant lawsuit on February 25, 2015, less than
thirty days after the alleged assault and while he was still
incarcerated at Gowanda. (Dkt. No. 68, pgs. 29-30). When
asked by defense counsel why he was afraid to file a grievance
but was not afraid to file a lawsuit, plaintiff testified that he
believed he would be transferred out of Gowanda soon after
his disciplinary hearing. (Id. at 30). Plaintiff further testified
that he did not believe the grievance process was effective,
since he “knew it would be intercepted someway”, he did not
“see [the officers] investigating themselves” and he “wanted
somebody to come from the outside to investigate this.” (Id. at
30-31). Plaintiff also testified that he did not file a grievance
after his transfer to Upstate because he described the alleged
assault during the appeal of his disciplinary charges. (Id. at
33). Plaintiff testified that he is familiar with inmate grievance
procedures. (Id. at 22). A review of the inmate grievance
records from DOCCS shows no record of a grievance or
appeal filed by plaintiff while at Gowanda alleging retaliation
or assault by defendants. (Dkt. No. 62, ¶ 21, Dkt. No. 62-8).
DISCUSSION
*4 Pursuant to Federal Rule of Civil Procedure 56, summary
judgment is to be granted where “there is no genuine dispute
as to any material fact and the movant is entitled to judgment
as a matter of law.” See Fed. R. Civ. P. 56. A genuine
issue of material fact exists “where the evidence is such
that a reasonable jury could decide in the non-movant’s
favor.” Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d
Cir. 2008). “[V]iewing the evidence produced in the light
most favorable to the nonmovant, if a rational trier [of fact]
could not find for the nonmovant, then there is no genuine
issue of material fact and entry of summary judgment is
appropriate.” Bay v. Times Mirror Magazine, Inc., 936 F.2d
112, 116 (2d Cir. 1991). When a movant has met this burden,
the burden shifts to the non-movant to bring forth evidence
establishing the existence of an issue of material fact. Linares
v. McLaughlin, 423 Fed. Appx. 84, 86 (2d Cir. 2011). In
evaluating a motion for summary judgment, a court must
resolve all ambiguities and draw all reasonable inferences
in favor of the nonmoving party, and it is the burden of the
moving party to demonstrate the absence of any material facts
genuinely in dispute. Hathaway v. Coughlin, 841 F.2d 48, 50
(2d Cir. 1988). Where a plaintiff is proceeding pro se, the
court must “construe the complaint liberally and interpret it
to raise the strongest arguments that [it] suggest[s].” Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010). However, even a
pro se litigant cannot defeat a motion for summary judgment
by relying upon conclusory statements or mere allegations
unsupported by facts. Davis v. New York, 316 F.3d 93, 100 (2d
Cir. 2002).
Plaintiff’s Failure to Exhaust Administrative Remedies
The Prison Litigation Reform Act of 1995 (the “PLRA”)
requires an inmate to exhaust available administrative
remedies before bringing suit to complain of prison
conditions or actions taken by prison officials, such as
retaliation or excessive force. See 42 U.S.C. § 1997e(a); Ross
v. Black, 136 S. Ct. 1850, 1854-55 (2016). Exhaustion under
the PLRA is mandatory, and must occur before the filing of a
lawsuit in federal district court. Woodford v. Ngo, 548 U.S. 81,
85 (2006). In order to 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. Jones v. Bock, 549 U.S.
199, 218 (2007). DOCCS provides a detailed administrative
review and appeals system for inmate grievances in New
York. Nji v. Heath, 13 Civ. 200, 2014 U.S. Dist. LEXIS
163060, *7-6 (SDNY Nov. 10, 2014); accord 7 N.Y. Comp.
Codes R. & Regs. § 701.5. In order to exhaust administrative
remedies, the inmate must file a grievance with his or her
facility’s Inmate Grievance Resolution Committee (“IGRC”)
within 21 calendar days of the alleged occurrence. Id. If the
IGRC denies the grievance, the inmate must file an appeal
of the decision to the superintendent of his or her facility.
Id. If the appeal to the superintendent is denied, the inmate
must then appeal that determination to the Central Office
Review Committee (“CORC”) located in Albany, New York.
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Id.; accord Espinal v. Goord, 558 F.3d 119, 125-26 (2d Cir.
2009).
The record before the Court establishes that plaintiff did not
exhaust his administrative remedies before filing the instant
lawsuit. Plaintiff states in his complaint that he did not file
a grievance as to the incident on February 6, 2015. He then
provided contradictory statements during his deposition as to
whether he filed a grievance. Plaintiff initially testified during
his deposition that he filed a grievance but did not receive
a response. He later attempted to clarify the statement by
explaining that he “wrote to grievance on a few people” but
that he did not “put exactly what happened.” Plaintiff then
testified during the same deposition that he did not file a
grievance because he feared retaliation by officers. He later
testified that he did not file a grievance because he believed
the grievance process was ineffective. Indeed, a review of
DOCCS records confirms that plaintiff did not file a grievance
or appeal of the February 6, 2015 incident.
Despite plaintiff’s initial statement in his deposition that he
filed a grievance, the evidence in the record reflects that
no grievance was filed as to the February 6, 2015 incident.
This evidence includes plaintiff’s statements in his complaint,
the majority of plaintiff’s deposition testimony wherein he
indicates that he did not file a grievance, plaintiff’s deposition
testimony as to the various reasons he did not file a grievance,
and DOCCS' records, which confirm that no grievance or
appeal were filed. Thus, the Court finds that plaintiff has
not raised a genuine issue of material fact as to whether he
filed a grievance. See Jeffreys v. City of New York, 426 F.3d
549 (2d Cir. 2005) (summary judgment in favor of defendant
upheld where nothing in the record supported plaintiff’s
allegations other than his own contradictory and incomplete
testimony); Deebs v. Alstom Transp., Inc., 346 F. App'x
654, 656 (2d Cir. 2009) (“self-serving” deposition testimony
cannot, by itself, defeat summary judgment); Burwell v.
Payton, 5:12-cv-166, 2015 U.S. Dist. LEXIS 152745 (D. Vt.
Nov. 9, 2015) (where plaintiff’s deposition testimony was
contradicted by the video recording, his own statement of
undisputed facts, and the allegations of his complaint, plaintiff
failed to identify a genuine issue of material fact that would
justify reconsideration).
*5 Moreover, even if the Court were to credit plaintiff’s
initial statement during his deposition that he filed a
grievance, it remains clear that plaintiff did not fully exhaust
his administrative remedies. Plaintiff testified that he did
not receive a response to the grievance. DOCCS records
reflect that no grievance or appeal was filed regarding the
February 6, 2015 incident. Indeed, “the law is well-settled”
that an inmate’s “failure to take an available administrative
appeal, even when the initial grievance receives no response,
constituted a failure to exhaust administrative remedies.”
Garvin v. Rivera, 13-cv-7054, 2015 U.S. Dist. LEXIS 84675,
*7-8 (SDNY June 29, 2015). See also Johnson v. New York
City Dep't of Correction, 13-cv-6799, 2014 U.S. Dist. LEXIS
85444 (SDNY June 16, 2014) (“Assuming that Plaintiff filed
a timely grievance ... and received no response within five
business days[,] ... Plaintiff ... could have taken the next step
and requested a hearing.”).
Finally, plaintiff’s assertions that he sent a copy of his federal
court complaint to Albany, wrote to the State Commission
of Corrections, and that he complained about the February
6, 2015 incident during the appeal of his disciplinary
hearing determination do not constitute exhaustion under
the PLRA. The Second Circuit has held that alerting prison
officials, through informal steps, as to the nature of the
wrong for which redress is sought does not constitute proper
exhaustion. Macias v. Zenk, 495 F.3d 37, 43-44 (2d Cir.
2007). See e.g., Nji, 2014 U.S. Dist. LEXIS 163060, *9
(“[s]ending letters to persons outside the grievance process is
insufficient to establish exhaustion because it is well settled
that complaints and communications made outside of formal
grievance procedures do not satisfy the PLRA’s exhaustion
requirement”) (internal citations and quotations omitted);
David v. Doe, 9:16-cv-0994, 2017 U.S. Dist. LEXIS 213704
(NDNY Dec. 29, 2017) (prisoner who did not file a grievance
as to his constitutional claims, but instead submitted a
disciplinary appeal and told a representative of the Office of
the Inspector General about the facts alleged in his lawsuit,
did not properly exhaust his administrative remedies under
the PLRA).
Exceptions to the Exhaustion Requirement Do Not Apply
Having concluded that plaintiff failed to exhaust his
administrative remedies under the PLRA, the Court next
considers whether there is any basis for excusing plaintiff’s
failure to exhaust. In Ross v. Blake, the Supreme Court
significantly narrowed the exceptions a court may afford
a prisoner who does not comply with the exhaustion
requirement in the PLRA. 136 S. Ct. 1850 (2016).
Therein, the Supreme Court rejected the prior “special
circumstances” exceptions to the exhaustion requirement
which had previously been recognized by the Second Circuit.
Id. at 1862. The Supreme Court held instead that the PLRA
includes only a single “textual exception”, in that an inmate
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need not exhaust administrative remedies not available to him
or her. Id. at 1858. The Supreme Court went on to cite three
scenarios in which an administrative grievance procedure
would be unavailable to an inmate: (1) “[the procedure]
operates as a simple dead end – with officers unable or
consistently unwilling to provide any relief to aggrieved
inmates”; (2) the procedure is “so opaque that it becomes,
practically speaking, incapable of use”; or (3) “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1859-60.
Here, the record before the Court fails to demonstrate that
administrative remedies were unavailable to plaintiff. There
is no evidence that the grievance procedures were opaque or
incapable of use. As described above, DOCCS has a clear,
detailed procedure for inmate grievances. Moreover, plaintiff
testified that he was familiar with the DOCCS' grievance
procedure. Plaintiff testified that he believed the grievance
procedure was ineffective because he did not “see the officers
investigating themselves” and that he “wanted somebody to
come from the outside to investigate this.” (Dkt. No. 64,
pg. 63). However, these conclusory statements, which reflect
only plaintiff’s subjective beliefs, are insufficient to raise a
triable issue of fact as to the availability of administrative
remedies. In Woodward v. Ngo, the Supreme Court noted that
“exhaustion requirements are designed to deal with parties
who do not want to exhaust”, including those who “conclude
—correctly or incorrectly—that exhaustion is not efficient
in that party’s particular case.” 548 U.S. 81, 89-90 (2006).
See also Harrison v. Goord, 07 Civ. 1806, 2009 U.S. Dist.
LEXIS 48478, *15 (SDNY June 9, 2009) (“Prisoners are
required to exhaust their administrative remedies even if they
believe that administrative remedies would be ineffective or
futile.”) (internal citations omitted); McMillian v. Walters,
9:16-CV-0277, 2017 U.S. Dist. LEXIS 208444, *7-8 (NDNY
Dec. 18, 2017) (“An inmate’s belief that administrative
remedies would be futile is not a valid excuse establishing
the unavailability of such remedies.”). Moreover, there is no
evidence in the record to indicate that DOCCS' complaint
or grievance procedures were either opaque or operated as a
dead end. To the contrary, plaintiff was able to successfully
file an appeal of his disciplinary hearing determination to the
Commissioner in Albany, New York. His appeal resulted in a
dismissal of two charges and reduction of the amount of time
he was sentenced to SHU.
*6 Plaintiff also stated in his complaint and during his
deposition that he did not file a grievance as to the incident on
February 6, 2015 because he feared retaliation from officers
at Gowanda. However, a generalized fear of retaliation is
insufficient to overcome a failure to exhaust administrative
remedies. Brown v. Napoli, 687 F. Supp. 2d 295, 297-98
(WDNY 2009); Harrison v. Stallone, 9:06-CV-902, 2007
U.S. Dist. LEXIS 98742 (NDNY Sept. 24, 2007) (“If an
inmate could simply state that he feared retaliation, there
would be no point in having a grievance procedure[.]”).
During his deposition, plaintiff stated in a general and
conclusory manner that he was threatened and harassed.
He also testified that on one occasion an officer escorting
him to SHU told him that his hand would be broken if
he “ran his mouth”. However, plaintiff does not indicate
who made this statement nor does he indicate the date or
time it occurred. Plaintiff also fails to provide any further
details as to the alleged threat or how it was specifically
connected to his use of grievance procedures. Similarly, in
Henry v. Cty. of Nassau, an inmate argued that administrative
remedies were unavailable because defendants threatened to
have him killed or assaulted if he reported various incidents of
failure to intervene, and that on one occasion they threatened
to “jump” him if he reported an incident. CV 13-7427,
2017 U.S. Dist. LEXIS 125443 (EDNY Aug. 7, 2017). The
Eastern District of New York Court rejected these assertions
and concluded that “[p]laintiff’s statements, devoid of any
specifics, including which defendants were involved, are
insufficient to defeat summary judgment.” Id. Likewise here,
plaintiff’s general and conclusory statements that he was
threatened are insufficient to raise a triable issue of fact as
to the unavailability of the grievance procedure because of
intimidation by prison administrators. See e.g., Rodriguez v.
Cross, 15-CV-1079, 2017 U.S. Dist. LEXIS 71337 (NDNY
May 9, 2017) (plaintiff’s conclusory allegations that he “was
beaten” while attempting to access grievance procedures were
insufficient to excuse his failure to exhaust under Ross, where
he does not state “how any specific threat or subsequent act
of violence impacted his ability to exhaust administrative
remedies[.]”); Johnson v. Frazier, 16-CV-6096, 2016 U.S.
Dist. LEXIS 165987 (WDNY Dec. 1, 2016) (plaintiff’s
allegations that grievance procedures were not available due
to threats from staff were “entirely conclusory, since [plaintiff
did] not indicate who threatened him, when he was threatened
or how he was threatened.”).
Further, plaintiff’s actions after the February 6, 2015
incident directly contradict his claim that he did not file
a grievance because he feared retaliation by officers at
Gowanda. Plaintiff both wrote a letter about the incident to
the State Commissioner of Corrections and filed the instant
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federal lawsuit in February of 2015, while he was still
incarcerated at Gowanda. See Rodriguez, 2017 U.S. Dist.
LEXIS 71337 (“[P]laintiff’s failure to follow the grievance
procedures cannot be excused by fears or intimidation, when
he simultaneously made his complaints known through other
means” such as informing a nurse that officers beat him
and “air[ing] his complaints and concerns in writing outside
of the grievance procedures[.]”); Johnson, 2016 U.S. Dist.
LEXIS 165987, *13-14 (rejecting plaintiff’s contention that
administrative remedies were unavailable to him because
he was threatened by correction officers but continued to
make and send formal complaints to prison officers and
other New York State officials). Indeed, plaintiff’s own
deposition testimony belies his claim that he was afraid
to grieve the February 6, 2015 incident. Plaintiff testified
during his deposition that he was not afraid to file a federal
lawsuit while still incarcerated at Gowanda, despite alleged
threats or harassment, because he was informed that he
would be transferred to a different facility immediately
after his disciplinary hearing. It defies logic that plaintiff
would be unafraid to file a lawsuit because he believed a
transfer of facilities was imminent, but that he would still be
fearful of filing a grievance. Additional inconsistencies and
contradictions in plaintiff’s deposition testimony cast further
doubt on his claim that he was afraid to file a grievance.
Not only does plaintiff contradict himself as to whether he
filed a grievance, but he also provides varying rationales
as to why he did not file one. Plaintiff testified that he did
not file a grievance because he was fearful of the officers.
However, he also testified that he did not file a grievance
because he believed the process was ineffective and he wanted
someone from the “outside” to investigate. See Dailey v.
Fuller, 9:15-cv-1051, 2016 U.S. Dist. LEXIS 168482 (NDNY
Dec. 5, 2016) (“Even where a complaint or affidavit contains
specific assertions, the allegations may still be deemed
conclusory if they are: (1) largely unsubstantiated by any
other direct evidence and (2) so replete with inconsistencies
and improbabilities that no reasonable juror would undertake
the suspension of belief necessary to credit the allegations[.]”)
(internal citations and quotations omitted).
*7 Finally, even if the Court were to conclude that plaintiff
had been threatened at Gowanda and that those threats
prevented him from filing a grievance, there has been no
showing that administrative remedies remained unavailable
to plaintiff after he was transferred to Upstate. DOCCS
procedures provides that an inmate may request an extension
of the time limit to file a grievance within forty-five days
of the date of the alleged occurrence. See N.Y. Comp.
Codes R. & Regs., § 701.6(g). Here, the alleged assault took
place on February 6, 2015 and plaintiff was transferred to
Upstate on or about March 6, 2015. When plaintiff arrived
at Upstate, approximately twenty-nine days had elapsed
since the alleged assault, and plaintiff could have timely
requested an extension of time to file a grievance. In fact,
plaintiff had an additional seventeen days after arriving at
Upstate to request an extension of time. See Bookman v.
Linstrand, 9:15-CV-1542, 2018 U.S. Dist. LEXIS 25157
(NDNY February 14, 2018) (“Even assuming that [plaintiff’s
allegations] could be construed as creating an issue of fact
with respect to the grievance process at GMCF, it does
not create an issue of fact with respect to the availability
of the grievance process at Clinton, where plaintiff was
housed in the immediate aftermath of the alleged assault.”);
Smith v. Costello, 9:15-CV-0401, 2017 U.S. Dist. LEXIS
31341 (NDNY March 3, 2017) (specific threats against
plaintiff with respect to filing a grievance did not excuse
his failure to exhaust administrative remedies where plaintiff
had thirty-three days to request an extension of time to
file after his transfer from the facility where the threats
occurred); Wallace v. Fisher, 9:13-CV-1208, 2015 U.S. Dist.
LEXIS 169256 (NDNY Dec. 18, 2015) (concluding that
even if plaintiff’s administrative remedies were unavailable
at Watertown Correctional Facility, plaintiff did not persuade
the Court that his administrative remedies continued to be
unavailable after his transfer to Gouverneur Correctional
Facility, since after his transfer plaintiff had twelve days
in which to request an extension of the twenty-one day
deadline for filing a grievance). Thus, the Court finds no
basis in the record to excuse plaintiff’s failure to exhaust his
administrative remedies.
CONCLUSION
For the foregoing reasons, it is recommended that defendants
Lynn Wasielewski’s, Rebecca McDaniel’s, Paul Burke’s,
Dennis Becker’s and Sabato Parisi’s motion for summary
judgment be granted and the complaint dismissed. (Dkt. No.
61).
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED
that this Report, Recommendation and Order be filed with the
Clerk of Court.
Unless otherwise ordered by Judge Arcara, any objections to
this Report and Recommendation must be filed with the Clerk
of Court within fourteen days of service of this Report and
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Recommendation in accordance with the above statute, Rules
72(b), 6(a), and 6(d) of the Federal Rules of Civil Procedure,
and W.D.N.Y. L. R. Civ. P. 72. Any requests for an extension
of this deadline must be made to Judge Arcara.
Failure to file objections, or to request an extension of time
to file objections, within fourteen days of service of this
Report and Recommendation WAIVES THE RIGHT TO
APPEAL THE DISTRICT COURT'S ORDER. See Small v.
Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989).
The District Court will ordinarily refuse to consider de novo
arguments, case law and/or evidentiary material which could
have been, but were not, presented to the Magistrate Judge
in the first instance. See Paterson–Leitch Co. v. Mass. Mun.
Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
Finally, the parties are reminded that, pursuant to W.D.N.Y.
L.R.Civ.P. 72(b), written objections “shall specifically
identify the portions of the proposed findings and
recommendations to which objection is made and the basis for
each objection, and shall be supported by legal authority.”
Failure to comply with these provisions may result in the
District Court’s refusal to consider the objection.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 4732755
Footnotes
1 The facts described herein are taken from pleadings, motion papers, discovery and exhibits filed in this
lawsuit. Also, because plaintiff is proceeding pro se, the Court has considered all of his submissions in support
of his complaint and in opposition to defendants' motion for summary judgment, regardless of the form in
which they have been submitted.
2 A DOCCS Directive dated November 12, 2011 provides that inmates serving sentences for certain nonviolent
crimes may receive merit time allowances against their sentences provided they have, inter alia, “achieved
certain significant programmatic objections.” (Dkt. No. 69, pg. 5).
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Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2018 WL 4692476
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Alfredo LEWIS, Plaintiff,
v.
Lynn WASIELEWSKI, Rebecca McDaniel Paul
Burke, Dennis Becker and Sabato Parisi, Defendants.
15-CV-168-A
|
Signed 10/01/2018
Attorneys and Law Firms
Alfredo Lewis, Uniondale, NY, pro se.
David J. Sleight, Office of the Attorney General, Buffalo, NY,
for Defendants.
DECISION AND ORDER
HONORABLE RICHARD J. ARCARA, UNITED STATES
DISTRICT JUDGE
*1 This pro se civil rights case was referred to
Magistrate Judge Michael J. Roemer for the conduct of
pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1).
On July 10, 2018, the Magistrate Judge filed a Report
and Recommendation (Dkt. No. 71) recommending that
defendants' motion for summary judgment pursuant to Fed.
R. Civ. P. 56 (Dkt. No. 61) be granted.
On September 10, 2018, pro se plaintiff Alfredo Lewis filed
objections to the Report and Recommendation. (Dkt. No. 75).
Defendants filed a response on September 10, 2018. (Dkt. No.
76). Oral argument is unnecessary.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make
a de novo determination of those portions of the Report
and Recommendation to which pro se plaintiff Lewis
has objected. Upon de novo review after reviewing the
submissions of the parties, the Court adopts the Magistrate
Judge’s findings and conclusions. It is therefore
ORDERED, pursuant to 28 U.S.C. § 636(b)(1), and for
the reasons stated in the Report and Recommendation (Dkt.
No. 71), that the defendants' Rule 56 motion for summary
judgment (Dkt. No. 61) is granted. The Clerk of the
Court shall enter judgment on behalf of defendants Lynn
Wasielewski, Rebecca McDaniel, Paul Burke, Dennis Becker,
and Sabato Parisi and shall close the case.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2018 WL 4692476
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Matthews v. Sweeney, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 447734
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Luke MATTHEWS; Carlos Gomez; Gentl Bonds;
Robert Smith; and Kasiem Chaves, Plaintiffs,
v.
L. SWEENEY, Clinton Corr. Sergeant; Michael Guynup,
Clinton Corr. Lieutenant; Corr. Emergency Response
Team (“CERT”) Officer 44-3; CERT Officer 44-4; CERT
Officer 44-5; and CERT Officer 44-29, Defendants.
9:17-CV-0503 (GTS/ML)
|
Signed February 10, 2025
Attorneys and Law Firms
DAVID B. RANKIN, ESQ., JONATHAN C. MOORE,
ESQ., MARC A. CANNAN, ESQ., BEDLOCK, LEVINE
& HOFFMAN, Counsel for Plaintiffs, 99 Park Avenue, 26th
Floor, New York, NY 10016.
DAVID C. WHITE, ESQ., THOMAS A. CULLEN, ESQ.,
MARK G. MITCHELL, ESQ., HON. LETITIA A. JAMES,
Attorney General for the State of New York, Counsel for
Defendants, The Capitol, Albany, NY 12224.
DECISION and ORDER
GLENN T. SUDDABY, United States District Judge
*1 The trial in this prisoner civil rights case, filed by
the five above-captioned individuals (“Plaintiffs”) against
the six above-captioned employees of the New York State
Department of Corrections and Community Supervision
(“Defendants”) pursuant to 42 U.S.C. § 1983, began with
an evidentiary hearing before the undersigned on February
5, 2025, regarding the affirmative defense of Defendants
that Plaintiffs Gomez, Smith and Bonds failed to exhaust
their available administrative remedies, as required by the
Prison Litigation Reform Act, before filing this case on
June 6, 2016 (their “exhaustion defense”). At the hearing,
documentary evidence was admitted, and testimony was
taken of Defendants’ witnesses (particularly, Cory Proscia,
Rachael Seguin, and Jonathan Nocera), as well as Plaintiffs’
witnesses (particularly, Plaintiff Gomez, Plaintiff Smith, and
non-party Manuel Nunez), 1 each of whom was able to be
cross-examined by opposing counsel. At the conclusion of the
hearing, the undersigned indicated that a written decision and
order would follow. This is that written decision and order.
For the reasons stated below, the claims of Plaintiffs Gomez,
Bonds, and Smith are dismissed because of their failure to
exhaust their available administrative remedies before filing
this action.
I. RELEVANT BACKGROUND
A. Plaintiffs’ Claims and Case's Relevant Procedural
History
Generally, the surviving claims in this case assert violations
of the Eighth Amendment and Title VI of the Civil Rights
Act of 1964 by Defendants during an investigation, at
Clinton Correctional Facility (“Clinton C.F.”), in Dannemora,
New York, into the escape of two inmates (David Sweat
and Richard Matt) from Clinton C.F., in June of 2015,
before those Plaintiff were transferred to Upstate Correctional
Facility (“Upstate C.F.”) and Sullivan Correctional Facility
(“Sullivan C.F.”). (See generally Dkt. No. 298 [Plfs.’ Third
Am. Compl.].)
Generally, his Decision and Order of March 18, 2022,
Senior U.S. District Judge Thomas J. McAvoy 2 left to
be determined, through an evidentiary hearing, Defendants’
exhaustion defense against the claims of Plaintiffs Gomez,
Bonds, and Smith. (Dkt. No. 325, at 19.) 3 Not addressed at
the evidentiary hearing are the following: (1) any exhaustion
defense against the claims of Plaintiff Negron, which
(although mentioned in Judge McAvoy's Decision and Order)
were voluntarily discontinued on January 4, 2022 (Dkt.
No. 310); (2) any exhaustion defense against the claims of
Plaintiff Matthews, with regard to which Judge McAvoy
denied Defendants’ motion for summary judgment (id. at
13-16, 19), and Defendants have since effectively abandoned
their exhaustion defense against the claims of Matthews (Dkt.
No. 364); 4 and (3) any exhaustion defense against the claims
of Plaintiff Chaves, with regard to which Defendants never
moved for summary judgment (see generally Dkt. No. 254,
Attach. 1, at 14 [attaching page “11” of Defs. Memo. of
Law, stating, “At this time, defendants do not assert a failure
to exhaust argument with respect to Chaves’ sole surviving
claim”]), and in any event Defendants have since effectively
abandoned their exhaustion defense against the claims of
Chaves (Dkt. No. 364). 5
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*2 Because this Decision and Order is intended primarily for
the review of the parties, the Court will presume the reader's
familiarity with further details regarding Plaintiffs’ claims
and the relevant procedural history of this case.
B. Parties’ Arguments
1. Defendants’ Arguments
Generally, Defendants assert four arguments. First,
Defendants argue, Plaintiff Gomez never filed grievances
at either Clinton C.F. or Upstate C.F., regarding his current
claims of mistreatment at Clinton C.F. on June 6, 2015,
and June 16, 2015; and, although he filed two grievances
at Sullivan C.F. on December 2, 2015, neither of those
grievances regarded the claims asserted in this case. (Dkt. No.
254, Attach. 1, at 9-10 [attaching pages “6” and “7” of Defs.’
Memo. of Law].) In any event, Defendants argue, Plaintiff
Gomez never filed a grievance appeal regarding the claims he
asserts. (Id.)
Second, Defendants argue, Plaintiff Bonds never filed
grievances at either Clinton C.F. or Upstate C.F., regarding
his current claims of mistreatment at Clinton C.F. on June
15, 2015; and, although, while at Sullivan C.F., he filed a
grievance regarding his current claims, that grievance was
denied by the Superintendent of Sullivan C.F., and Plaintiff
Bonds never appealed that denial. (Id. at 10-11 [attaching
pages “7” and “8” of Defs.’ Memo. of Law].) 6
Third, Defendants argue, Plaintiff Smith never filed
grievances at Clinton C.F., Upstate C.F., or Sullivan C.F.,
regarding his current claims of mistreatment at Clinton C.F.
on June 15, 2016, nor did he appeal the denial of any such
grievances. (Id. at 12-13 [attaching pages “9” and “10” of
Defs.’ Memo. of Law].)
Fourth, Defendants argue, any argument that these Plaintiffs
were not required to exhaust because the administrative
procedure offered to them operated as a “simple dead end” is
conclusory in nature. (Dkt. No. 286, at 7 [attaching page “5”
of Defs.’ Reply Memo. of Law].)
2. Plaintiffs’ Arguments
Generally, Plaintiffs assert three arguments. First, Plaintiffs
argue, Plaintiffs Gomez, Bonds and Smith should be
excused from having to exhaust their available administrative
remedies because the administrative procedure offered by the
New York State Department of Corrections and Community
Supervision operated as a “simple dead end” for plaintiffs
making the types of complaints in question (due to officers
being consistently unwilling to provide any relief to aggrieved
inmates). (Dkt. No. 281, at 11-19 [attaching pages “7” through
“15” of Plfs.’ Opp'n Memo. of Law]; Dkt. No. 372, at 2
[Plfs.’ Ltr. Motion].) More specifically, Plaintiffs argue that
Office of Special Investigations (“OSI”) Investigator John
Nocera was tasked with conducting “the majority” of the
OSI's investigation of inmate grievances and allegations of
assault that resulted from the June 2015 escape investigation
(including interviews of several corrections officers and/
or CERT officers), but that Nocera either did not conduct
those investigations or misrepresented evidence that was
provided to him during them. (Id.) As a result, Plaintiffs
argue, OSI recommended that all inmate allegations of assault
against the CERT Officers and other corrections officers be
unsubstantiated. (Id.)
II. GOVERNING LEGAL STANDARD
*3 The Prison Litigation Reform Act of 1995 (“PLRA”)
requires that prisoners who bring suit in federal court must
first exhaust their available administrative remedies: “No
action shall be brought with respect to prison conditions under
§ 1983 ... by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e.
The PLRA was enacted “to reduce the quantity and improve
the quality of prisoner suits” by “afford[ing] corrections
officials time and opportunity to address complaints internally
before allowing the initiation of a federal case.” Porter
v. Nussle, 534 U.S. 516, 524-25 (2002). In this regard,
exhaustion serves two main purposes. First, it protects
“administrative agency authority” by giving the agency “an
opportunity to correct its own mistakes with respect to the
programs it administers before it is haled into federal court,
and it discourages disregard of the agency's procedures.”
Woodford v. Ngo, 548 U.S. 81, 89 (2006). Second, exhaustion
promotes efficiency because (a) “[c]laims generally can be
resolved much more quickly and economically in proceedings
before an agency than in litigation in federal court,” and (b)
“even where a controversy survives administrative review,
exhaustion of the administrative procedure may produce
a useful record for subsequent judicial consideration.”
Woodford, 548 U.S. at 89. “[T]he PLRA's exhaustion
requirement applies to all inmate suits about prison life,
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whether they involve general circumstances or particular
episodes, and whether they allege excessive force or some
other wrong.” Porter, 534 U.S. at 532.
In accordance with the PLRA, the New York State
Department of Corrections and Community Supervision
(“DOCCS”) has made available a well-established inmate
grievance program. 7 N.Y.C.R.R. § 701.7. Generally, the
DOCCS Inmate Grievance Program (“IGP”) involves the
following three-step procedure for the filing of grievances. 7
N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7. 7
First, an inmate must file a complaint with the facility's
IGP clerk within a certain number of days of the alleged
occurrence. 8 If a grievance complaint form is not readily
available, a complaint may be submitted on plain paper. A
representative of the facility's inmate grievance resolution
committee (“IGRC”) has a certain number of days from
receipt of the grievance to informally resolve the issue. If
there is no such informal resolution, then the full IGRC
conducts a hearing within a certain number of days of receipt
of the grievance, and issues a written decision within a certain
number of days of the conclusion of the hearing.
Second, a grievant may appeal the IGRC decision to the
facility's superintendent within a certain number of days of
receipt of the IGRC's written decision. The superintendent is
to issue a written decision within a certain number of days of
receipt of the grievant's appeal.
*4 Third, a grievant may appeal to the central office review
committee (“CORC”) within a certain number of days of
receipt of the superintendent's written decision. CORC is to
render a written decision within a certain number of days of
receipt of the appeal.
Moreover, there is an expedited process for the review
of complaints of inmate harassment or other misconduct
by corrections officers or prison employees. 7 N.Y.C.R.R.
§ 701.8. In the event the inmate seeks expedited review,
he or she may report the misconduct to the employee's
supervisor. The inmate then files a grievance under the
normal procedures outlined above, but all grievances alleging
employee misconduct are given a grievance number, and
sent immediately to the superintendent for review. Under
the regulations, the superintendent or his designee shall
determine immediately whether the allegations, if true, would
state a “bona fide” case of harassment, and if so, shall initiate
an investigation of the complaint, either “in-house,” by the
Inspector General's Office, or by the New York State Police
Bureau of Criminal Investigations. An appeal of the adverse
decision of the superintendent may be taken to the CORC
as in the regular grievance procedure. A similar “special”
procedure is provided for claims of discrimination against an
inmate. 7 N.Y.C.R.R. § 701.9.
These procedural requirements contain several safeguards.
For example, if an inmate could not file such a complaint
within the required time period after the alleged occurrence,
he or she can apply to the facility's IGP Supervisor for an
exception to the time limit based on mitigating circumstances.
If that application is denied, the inmate can file a complaint
complaining that the application was wrongfully denied. 9
Moreover, any failure by the IGRC or the superintendent
to timely respond to a grievance or first-level appeal,
respectively, may be appealed to the next level, including
CORC, in order to complete the grievance process. 10
The Court hastens to add, however, that, although an
unprocessed grievance (i.e., a grievance that has not been
assigned a grievance number) may technically be appealed,
it need not be appealed in order for exhaustion to occur,
because the regulatory scheme advising the inmate of that
right has been found to be “too opaque.” See Williams v. Corr.
Officer Priatno, 829 F.3d 118, 126 (2d Cir. 2016) (finding
that, “even if Williams technically could have appealed his
[unprocesseed] grievance, we conclude that the regulatory
scheme providing for that appeal is ‘so opaque’ and ‘so
confusing that ... no reasonable prisoner can use [it pursuant
to Ross v. Blake, 136 S. Ct. 1850 (2016)]”).
*5 Moreover, it is important to note that DOCCS has a
separate and distinct administrative appeal process for inmate
misbehavior hearings:
A. For Tier III superintendent hearings, the appeal is to
the Commissioner's designee, Donald Selsky, D.O.C.S.
Director of Special Housing/Inmate Disciplinary
Program, pursuant to 8 N.Y.C.R.R. § 254.8;
B. For Tier II disciplinary hearings, the appeal is to the
facility superintendent pursuant to 7 N.Y.C.R.R. § 253.8;
and
C. For Tier I violation hearings, the appeal is to the facility
superintendent or a designee pursuant to 7 N.Y.C.R.R. §
252.6.
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“An individual decision or disposition of any current or
subsequent program or procedure having a written appeal
mechanism which extends review to outside the facility shall
be considered non-grievable.” 7 N.Y.C.R.R. § 701.3(e)(1).
Similarly, “an individual decision or disposition resulting
from a disciplinary proceeding ... is not grievable.” 7
N.Y.C.R.R. § 701.3(e)(2). However, “[t]he policies, rules,
and procedures of any program or procedure, including those
above, are grievable.” 7 N.Y.C.R.R. § 701.3(e)(3); see also
N.Y. Dep't Corr. Serv. Directive No. 4040 at III.E.
Generally, if a prisoner has failed to properly follow each
of the required three steps of the above-described grievance
procedure prior to commencing litigation, he has failed
to exhaust his administrative remedies, and his claims are
subject to dismissal. Woodford, 548 U.S. at 93; Porter, 534
U.S. at 524; Ruggiero v. County of Orange, 467 F.3d 170, 175
(2d Cir. 2006). However, a plaintiff's failure to exhaust does
not end the inquiry. This is because certain exceptions exist
to the exhaustion requirement.
In particularly, in 2004, in Hemphill v. State of New York, the
Second Circuit held that a three-part inquiry is appropriate
where a defendant contends that a prisoner has failed to
exhaust his available administrative remedies, as required by
the PLRA. Hemphill v. State of New York, 380 F.3d 680, 686,
691 (2d Cir. 2004), accord, Ruggiero, 467 F.3d at 175. First,
“the court must ask whether [the] administrative remedies
[not pursued by the prisoner] were in fact ‘available’ to
the prisoner.” Hemphill, 380 F.3d at 686 (citation omitted).
Second, if those remedies were available, “the court should ...
inquire as to whether [some or all of] the defendants may
have forfeited the affirmative defense of non-exhaustion by
failing to raise or preserve it ... or whether the defendants’
own actions inhibiting the [prisoner's] exhaustion of remedies
may estop one or more of the defendants from raising the
plaintiff's failure to exhaust as a defense.” Id. [citations
omitted]. Third, if the remedies were available and some
of the defendants did not forfeit, and were not estopped
from raising, the non-exhaustion defense, “the Court should
consider whether ‘special circumstances’ have been plausibly
alleged that justify the prisoner's failure to comply with the
administrative procedural requirements.” Id. [citations and
internal quotations omitted].
However, in 2016, in Ross v. Blake, the Supreme Court
abrogated Hemphill’s third prong and effectively enveloped
its second prong within its first prong. Ross v. Blake, 136 S.
Ct. 1850, 1857 (2016). More specifically, under Ross, any
inquiry that previously would have been considered under
the second or third prongs of Hemphill is now considered
entirely within the context of whether administrative remedies
were actually available to the aggrieved inmate. Ross, 136 S.
Ct. at 1858. This is because, the Supreme Court explained,
the PLRA “contains its own, textual exception to mandatory
exhaustion.” Id. In particular, 42 U.S.C. § 1997e(a) provides
that only those administrative remedies that “are available”
must first be exhausted. Id. In the PLRA context, the Supreme
Court determined that “availability” means that “an inmate
is required to exhaust those, but only those, grievance
procedures that are capable of use to obtain some relief for the
action complained of.” Id. at 1859 (quotation marks omitted).
*6 To guide courts in this new analysis, the Supreme
Court has identified three kinds of circumstances in which
an administrative remedy, “although officially on the books,”
is not “available.” Ross, 136 S. Ct. at 1859. First, “an
administrative procedure is unavailable when (despite what
regulations or guidance materials may promise) it operates
as a simple dead end–with officers unable or consistently
unwilling to provide any relief to aggrieved inmates.” Id.
Second, “an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use.” Id. Third,
an administrative remedy is not “available” when “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 1860.
Finally, two additional points bear mentioning regarding
exhaustion hearings. First, the Second Circuit has ruled that
a plaintiff in a lawsuit governed by PLRA is not entitled to a
jury trial on disputed factual issues relating to his exhaustion
of administrative remedies; rather, PLRA exhaustion is a
matter of judicial administration. Messa v. Goord, 652
F.3d 305, 308-10 (2d Cir. 2011). Second, given that non-
exhaustion is an affirmative defense, the defendant bears
the burden of proving that a prisoner has failed to exhaust
his available administrative remedies. 11 However, once a
defendant has adduced reliable evidence that administrative
remedies were available to the plaintiff and that the plaintiff
nevertheless failed to exhaust those administrative remedies,
the plaintiff must then “counter” the defendant's assertion by
persuading the Court of either exhaustion or unavailability. 12
As a result, practically speaking, while the burden of proving
this affirmative defense remains at all times on the defendant,
the plaintiff may sometimes have to adduce evidence in order
to defeat it.
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III. ANALYSIS
After carefully considering the admissible record evidence
adduced at the exhaustion hearing, the Court renders
the following three factual findings: (1) Defendants have
met their burden of proving that Plaintiffs Gomez, Smith
and Bonds failed to exhaust their administrative remedies
regarding the claims in question before filing this action;
(2) Defendants have also met their burden of proving that
administrative remedies were generally available to those
Plaintiffs during the time in question (e.g., that the grievance
procedure was working at Upstate C.F. and Sullivan C.F.
during the time in question); and (3) Plaintiffs have not
persuaded the Court that, at Upstate C.F. and Sullivan C.F.
during the time in question, the grievance procedure operated
as a “simple dead end” (with officers unable or consistently
unwilling to provide any relief to aggrieved inmates).
In support of the first factual finding, the Court relies on the
following: (1) the fact that Plaintiffs’ counsel conceded at the
exhaustion hearing that Plaintiffs Gomez, Smith and Bonds
failed to exhaust their administrative remedies regarding
the claims in question before filing this action; and (2)
alternatively, the hearing exhibits admitted during the hearing
testimony on that subject by Cory Proscia and Rachael
Seguin, as well as those witnesses’ convincing demeanor and
body language (including, but not limited to, their tone of
voice, facial expressions, and eye contact).
*7 In support of the second factual finding, the Court
relies on the following: (1) the fact that Plaintiffs’ counsel
conceded at the exhaustion hearing that Plaintiff Chaves,
Plaintiff Matthews, and non-party Manuel Nunez were able
to exhaust their available administrative remedies regarding
claims of excessive force during their removal from Clinton
C.F.; 13 and (2) alternatively, the hearing exhibits admitted
during the hearing testimony on that subject by Cory Proscia
and Rachael Seguin, as well as those witnesses’ convincing
demeanor and body language (including, but not limited to,
their tone of voice, facial expressions, and eye contact).
In support of the third factual finding, the Court relies on
the following: (1) the hearing exhibits admitted during and
after 14 the hearing testimony of OSI Investigator Jonathan
Nocera, as well as his convincing demeanor and body
language (including, but not limited to, his tone of voice,
facial expressions, and eye contact); (2) the unconvincing
demeanor and body language of non-party Manuel Nunez,
Plaintiff Gomez, 15 and Plaintiff Smith, 16 during their
hearing testimony (including, but not limited to, their tone
of voice, facial expressions, and eye contact or lack thereof);
(3) the fact that, at the exhaustion hearing, Plaintiff Bonds
chose to not even testify that he viewed the process as a
“dead end” (much less subject himself to cross-examination
on the issue); 17 and (4) alternatively, the fact that, on June
30, 2015, Plaintiffs Bonds chose to file a grievance at Sullivan
C.F. regarding the claims at issue in this action on June 30,
2015, 18 which constitutes at least some evidence that Bonds
did not view the process as a “dead end.” 19
*8 In addition, the Court makes the following three points.
First, the Court rejects Plaintiffs’ post-hearing argument that
“the purpose of the [exhaustion] hearing was not to assess
whether Mr. Bonds failed to exhaust administrative remedies”
but “to assess the weight of Plaintiffs’ evidence that DOCCS's
summarily rejected inmate complaints of harassment during
the 2015 escape investigation and the credibility of the
DOCCS employee who conducted the majority of that
investigation—John Nocera.” (Dkt. No. 378, at 1-2.) Contrary
to Plaintiffs’ interpretation of Judge McAvoy's Decision and
Order of March 18, 2022, his finding that “Plaintiffs have
met their burden of demonstrating that DOCCS personnel
rejected grievances of employee harassment arising from
[the] 2015 escape investigation regardless of the merits of
those grievances” was merely a ground to deny Defendants’
motion for summary judgment on the issue of exhaustion (the
success of which turned on whether Plaintiffs failed to exhaust
as a matter of law). (Dkt. No. 325, at 12.) 20 The question of
fact that remained for the exhaustion hearing (the outcome of
which turns on a mere preponderance of the evidence) was
“whether Plaintiffs’ administrative remedies were available
to them with respect to grievances against DOCCS personnel
surrounding the escape investigation, or whether the IGP
related to these grievances was a simple dead end.” (Id.)
Simply stated, the rejection-of-grievances-regardless-of-the-
merits fact identified by Plaintiffs was left to be proven by
them at the exhaustion hearing, unless it was conceded by
Defendants (which it was not). Furthermore, although the
Court has certainly considered Plaintiffs’ hearing evidence
as applying to all Plaintiffs (including Plaintiffs Bonds), the
Court simply finds that evidence unconvincing for the reasons
stated above and below.
Second, to prove that a grievance process operated as a
dead end, a plaintiff must show that the grievance process
“could not lead to a change in the challenged prison policies.”
Green Haven Prison Preparative Meeting of Religious Soc'y
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of Friends v. N.Y. State Dep't of Corr. & Cmty. Supervision,
16 F.4th 67, 82 (2d Cir. 2021), cert. denied sub nom. Green
Haven Preparative Meeting v. New York State Dep't of Corr.
& Cmty. Supervision, 142 S. Ct. 2676 (2022). As the Second
Circuit explained in Green Haven,
Plaintiffs ... appear to make a futility
argument, claiming that the grievance
process was ‘a dead end’ such that
they were not required to exhaust
administrative remedies .... The bar
for the availability of remedies,
however, is low. To constitute an
‘available’ remedy, a process requires
only ‘the possibility of some relief.’
Ross v. Blake, 578 U.S. 632, 643,
136 S. Ct. 1850, 195 L.Ed.2d 117
(2016) (emphasis added) (quotation
marks omitted). Here, the Incarcerated
Plaintiffs provide no evidence that a
grievance asserting that a prisoner's
religious liberty has been violated by
a limitation on the number or timing
of religious services or celebrations
could not lead to a change in the
challenged prison policies. Plaintiffs
are thus unable to avoid the exhaustion
requirement, and the Incarcerated
Plaintiffs’ RLUIPA claims fail.
Green Haven, 16 F.4th at 82 [emphasis in original]. A plaintiff
has not met this burden simply by arguing that DOCCS never
approved a grievance similar to the sort at issue in his case.
See Wright v. Georgia Dep't of Corr., 820 F. App'x 841, 845
(11th Cir. 2020) (“Wright argued that the grievance process
was an unavailable dead end because the wardens had never
approved an inmate grievance involving medical treatment;
however, he provided no factual support for this assertion.
Accordingly, the district court did not err in concluding that
the defendants satisfied their burden to show the failure to
exhaust an available remedy and Wright failed to show that
the remedy was effectively unavailable to him.”).
Third, the fact that Mr. Nunez may have experienced a
problem submitting his claim to Investigator Nocera –
particularly when Nocera was trying to investigate the claim
of Plaintiff Matthews 21 – hardly establishes that the problem
asserted by Nunez was systematic. See Barksdale v. Annucci,
15-CV-0560, 2016 WL 4708235, at *3 (N.D.N.Y. Aug. 4,
2016) (Stewart, M.J.) (“As evidence of systematic delays,
Plaintiff cites several grievances filed by other inmates, which
he notes were not stamped as received until as long as a
week and a half after they were dated .... [T]his evidence
is insufficient to establish a pattern of systematic delays
in the processing of grievances at Coxsackie.”), report-
recommendation adopted, 2016 WL 4703740 (N.D.N.Y.
Sept. 8, 2016) (Kahn, J.). This is particularly true given
that, contrary to Plaintiff's argument that Investigator Nocera
was tasked with conducting the “majority” of the OSI's
investigation of inmate grievances and allegations of assault
that resulted from the June 2015 escape investigation (Dkt.
No. 372, at 2 [Plfs.’ Ltr. Motion]; Dkt. No. 281, at 6-7
[attaching pages “2” and “3” of Plfs.’ Opp'n Memo. of Law]),
in fact, it appears (based on the available record evidence) that
Nocera conducted fewer than half of those investigations. 22
In any event, regardless of whether Nocera conducted more
than half of the investigations, the fact that other investigators
existed further weakens Mr. Nunez's claim that Investigator
Nocera's (purported) inaction rendered the entire procedure a
“dead end.”
*9 For each of these numerous alternative reasons, the
claims of Plaintiffs Gomez, Smith and Bonds are dismissed.
ACCORDINGLY, it is
ORDERED that the claims of Plaintiffs Gomez, Smith
and Bond in their Third Amended Complaint (Dkt. No.
298) are DISMISSED for failure to exhaust their available
administrative remedies before filing suit.
All Citations
Slip Copy, 2025 WL 447734
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Footnotes
1 Plaintiff Bonds did not testify. His proffered reason for not appearing was “I was given 20 minutes to ready
[sic]. First made aware of leaving on the day I had to leave. I was physically incapable of [sic].” (Dkt. No. 373
[Refusal/Waiver of Right to Be Physically Present at Court].) The Order to appear was served on Plaintiff's
counsel on January 15, 2025. (Dkt. No. 368.) At the exhaustion hearing, his counsel stated that, after speaking
with Plaintiff Bonds on February 4, 2025, counsel had learned as follows: (1) Plaintiff Bonds claims that, in
his 15 years’ experience being incarcerated he “usually” gets a day's notice before he is transported to court;
(2) here, he did not receive that one day's notice, but only twenty or thirty minutes’ notice; and (3) as a result,
he was not “prepared” because he had not showered and was not “groomed,” and because he just suffered
an injury in the gym so he had a “pain issue” as well. (Exhaust. Hrg. Tr.)
2 This case was reassigned from Judge McAvoy to the undersigned on February 13, 2024. (Dkt. No. 356.)
3 Although Judge McAvoy also stated in his Decision and Order that “Defendants may renew their summary
judgment motion following the conclusion of this hearing” (Dkt. No. 325, at 19), such a renewed motion
for summary judgment is unnecessary given the preponderance-of-the-evidence standard that governs the
Court's determination in an exhaustion hearing, as stated in the undersigned's Text Order of February 2,
2024 (Dkt. No. 366).
4 In addition, the Court notes that, on January 15, 2025, the undersigned's Courtroom Deputy, Shelly Muller,
received an email message from defense counsel confirming the fact that Defendants will not be pursuing
their exhaustion defense against the claims of Plaintiffs Matthews or Chaves at the exhaustion hearing.
5 See, supra, note 4 of this Decision and Order.
6 Defendant argues that Plaintiff Bonds initially submitted this grievance to the Superintendent of Clinton C.F.,
who responded (through a representative) that it must be filed at Sullivan C.F. (Dkt. No. 254, Attach. 1, at
10-11 [attaching pages “7” and “8” of Defs.’ Memo. of Law].)
7 See also Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *1 & n.1 (N.D.N.Y. March 31, 2010) [citation
omitted].
8 The Court uses the term “a certain number of days” rather than a particular time period because (1) since
the three-step process was instituted, the time periods imposed by the process have changed, and (2) the
time periods governing any particular grievance depend on the regulations and directives pending during the
time in question.
9 See Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *2 & n.3 (N.D.N.Y. March 31, 2010) (citing Groves
v. Knight, 05-CV-0183, Decision and Order at 3 [N.D.N.Y. filed Aug. 4, 2009], an appeal from which was
subsequently dismissed as frivolous, see Groves v. Knight, No. 09-3641, Mandate [2d Cir. filed Jan. 15,
2010].)
10 See 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within the time limits may be appealed to the next
step.”); see also Murray, 2010 WL 1235591, at *2 & n.4 [collecting cases]; cf. 7 N.Y.C.R.R. § 701.8(g) (“If
the superintendent fails to respond within the required 25 calendar day time limit the grievant may appeal
his/her grievance to CORC.”).
11 Id. at *4 [citation omitted].
12 Id. at *4 & n.17 [citing cases]; see also Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (noting that special
circumstances must be “plausibly alleged, ... justify[ing] the prisoner's failure to comply with administrative
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procedural requirements”); Grant v. Kopp, 17-CV-1224, 2019 WL 368378, at *4 (N.D.N.Y. Jan. 3, 2019)
(Peebles, M.J.) (“I conclude that although the burden of proof on this affirmative defense remains with the
defendant at all times, the plaintiff can be required to produce evidence in order to defeat it.”) (citing cases),
adopted, 2019 WL 367302 (N.D.N.Y. Jan. 30, 2019) (Sharpe, J.).
13 The Court notes that the fact that Plaintiff Chaves, Plaintiff Matthews, and non-party Nunez were able to
exhaust their administrative remedies regarding their treatment during transfer from Clinton C.F. to Upstate
C.F. is at least some evidence that that the grievance process was available during the time in question. See
Moreau v. Ellsworth, No. 21-2997, 2023 WL 3477153, at *2 (2d Cir. May 16, 2023) (“[T]he record evidence
demonstrates that Moreau and other inmates at Eastern were able to appeal from several unfavorable IGRC
decisions during the same period. There is thus no basis to conclude that the inmate-grievance process was
unavailable.”).
14 The Court notes that, after the hearing testimony of Nocera, Plaintiffs’ counsel submitted into evidence
selected portions of the deposition testimony of several CERT Officers testifying that they do not recall having
been interviewed by OSI or DOCCS regarding the allegations in question in 2015 (at Hrg. Exs. P-10, P-11,
P-12, P-13, and P-14). Defendants’ counsel objected to the admission of these selected portions of the
deposition testimony, and the Court reserved decision on this issue. After carefully considering the matter, the
Court admits these exhibits into the record, because they do not change the outcome of the Court's decision.
In addition to the fact that nearly six years passed between the interviews and the depositions, the Court
is persuaded by the credible testimony of Nocera that the interviews occurred (as well as the corroborating
documentary evidence).
15 For example, the Court does not find credible Plaintiff Gomez's hearing testimony that (1) he tried to file a
grievance at Upstate C.F. regarding the claims at issue but was unable to do so because of a sign on his cell
gate, and (2) he did not try to file such a grievance at Sullivan C.F. because he was threatened by unidentified
officers (or anyone else) there. (Exhaust. Hrg. Tr.) The Court notes that it has carefully considered this
testimony as potentially relevant to both the first circumstance of unavailability described in Ross, 136 S. Ct.
at 1859-60 (regarding when the administrative procedure operates as a “simple dead end” because officers
are “unable or consistently unwilling to provide any relief to aggrieved inmates”) and the third circumstance of
unavailability described in Ross (regarding when “prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation, or intimidation”).
16 For example, the Court does not find credible Plaintiff Smith's hearing testimony that he did not file a grievance
at Upstate C.F. regarding the claims at issue because of a sign on his cell gate and/or because CERT officers
had instructed medical staff not to give him treatment. (Exhaust. Hrg. Tr.) Again, the Court has carefully
considered this testimony as potentially relevant to both the first and third circumstances of unavailability
described in Ross, 136 S. Ct. at 1859-60. See, supra, note 9 of this Decision and Order.
17 See Woodward v. Lytle, 16-CV-1174, 2019 WL 2527342, at *8 (N.D.N.Y. May 24, 2019) (Peebles, M.J.)
(recommending dismissal for failure to exhaust, because “plaintiff who bore the burden of production to
demonstrate unavailability of the grievance process failed to meet that burden in failing to present any
evidence [at the exhaustion hearing], including his own testimony, that would indicate that Ms. Hartz, or
any defendants, refused to file a grievance while he was housed in the SHU at Cape Vincent”), report-
recommendation adopted, 2019 WL 2524756, at *1 (N.D.N.Y. June 19, 2019) (Mordue, J.).
18 (See Dkt. No. 254, Attach. 2, at 12 [Ex. C to Pinsonnault Decl., attaching copy of grievance from Bonds dated
June 30, 2015]; Exhaust. Hrg. Ex. D-10.)
19 See Walker v. Ball, 16-CV-0437, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018) (Stewart, M.J.) (“While
Plaintiff did not file any grievances regarding the alleged misconduct of Noonan and St. Johns ..., he did file
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grievances regarding other issues .... This shows that Plaintiff did not view the filing of grievances as a dead
end.”), report recommendation adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (Hurd, J.); Lapierre
v. LaValley, 15-CV-1499, 2019 WL 4015689, at *5 (N.D.N.Y. Aug. 26, 2019) (Stewart, M.J.) (rejecting an
asserted “dead end” exception and granting a motion for summary judgment because the plaintiff's prior
filings “show[ ] that [he] did not view the filing of grievances as a dead end”) (citation omitted), report and
recommendation adopted, 2019 WL 4686415 (N.D.N.Y. Sept. 26, 2019) (D'Agostino, J.), aff'd, 847 F. App'x
47 (2d Cir. 2021). The Court notes that the fact that Plaintiff Bonds lost this grievance is not evidence that it
was a dead end. See McMillian v. Walters, 16-CV-0277, 2018 WL 879270, at *3 (N.D.N.Y. Feb. 14, 2018)
(D'Agostino, J.) (“Plaintiff did not provide any evidence that would suggest that the administrative procedures
act as a dead end. Although Plaintiff stated in his deposition that the grievance process ‘didn't do anything’
for him in the past ..., a record of administrative defeats for a single prisoner is not sufficient evidence to
effectively indict the system.”).
20 To be clear, the “burden” referenced by Judge McAvoy regarded Plaintiffs’ modest burden in opposing
Defendants’ motion for summary judgment, not their shifted burden of persuasion at a subsequent
exhaustion hearing (during which the Court might evaluate the credibility of Plaintiffs’ testimony under cross-
examination). See, supra, Part II of this Decision and Order (setting forth legal standard).
21 The Court notes that, at the exhaustion hearing, Mr. Nunez testified that, as Investigator Nocera was
attempting to question him regarding the claim by Plaintiff Matthews on July 2 or 3, 2015, at Sing Sing C.F,
Mr. Nunez attempted to remind Plaintiff about his own claim and did not receive a satisfactory response.
(Exhaust. Hrg. Tr.)
22 More specifically, it appears that, of the 35 OSI Interview Statements in the record that indicate the name of
the investigating officer, 16 of those statements identify that officer as Jonathan Nocera, seven identify him
as James Lovelace, four identify him as Christopher Payant, three identify him as Scott Lustan, three identify
him as Ryan Graziano, one identifies him as Felix Cotto, and one identifies him as Investigator Retrosi. (Dkt.
No. 281, Attach. 9, at 3-8, 10, 12-17, 19, 20, 22-24, 26, 28, 30, 32, 33, 36, 38, 40, 42-45, 47, 49, 52, 55, 56
[Ex. 7 to Cannan Decl., attaching “OSI Interview Statements”].)
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McGee v. McGready, Not Reported in Fed. Supp. (2018)
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2018 WL 2045094
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Tony MCGEE, Plaintiff,
v.
Correction Officer MCGREADY, et al., Defendants.
16-CV-4187 (NSR)
|
Signed 04/30/2018
Attorneys and Law Firms
Tony McGee, Brooklyn, NY, pro se.
Colleen Kelly Faherty, State of New York Office of the
Attorney General, New York, NY, for Defendants.
OPINION & ORDER
NELSON S. ROMÁN, United States District Judge
*1 Plaintiff, Tony McGee (“Plaintiff”), an incarcerated pro
se inmate at Sing Sing Correctional Facility, brings this
action pursuant 42 U.S.C. § 1983 against Inmate Grievance
Supervisor Anthony Black (“Black”), former Corrections
Counselor Mary Jackson (“Jackson”), Sergeant Murray or
Murphy (“Sgt. Murray”), Sergeant Poole (“Sgt. Poole”)
and several other corrections officers. 1 Before this court
is Defendant Black and Jackson’s motion to dismiss the
amended complaint as against them based on failure to plead
a plausible claim, failure to exhaust administrative remedies,
and qualified immunity. For the foregoing reasons, the motion
is GRANTED.
FACTUAL BACKGROUND
The following facts are taken from Plaintiff’s Amended
Complaint and are deemed true for the purpose of this motion.
Plaintiff alleges that on or about July 22, 2013, while in the
mess hall he was assaulted by a fellow “gang related Hispanic
inmate” who made a derogatory or offensive statement. In
response to the statement, Plaintiff punched the inmate in the
face resulting in an altercation. During the fight, Plaintiff was
repeatedly punched about the face causing several lacerations.
Plaintiff alleges that a “Black Correction Officer” 2 was
present in the mess hall, observed the incident, and failed to
prevent it and/or failed to intervene.
On or about July 11, 2013, approximately eleven days
prior to the altercation, Plaintiff spoke to Jackson and
requested that he be placed in protective custody because
he was threatened and being targeted by “gang-related
Hispanic inmates.” Jackson purportedly prepared a request
for “voluntary protective custody,” and informed Plaintiff he
would be contacted sometime later. Later that day, Plaintiff
was interviewed by Sgt. Murray concerning his request
for protective custody. Plaintiff purportedly informed Sgt.
Murray of the threats and being targeted. Plaintiff was
once again informed he would be contacted sometime later.
Plaintiff’s request was not granted. Plaintiff suggests had he
been placed in protective custody, as requested, he would
not have been assaulted and injured. Additionally, Plaintiff
asserts that Defendant Black failed to process multiple sick-
call grievances by failing to forward them to Central Office
Review Committee (“CORC”). Plaintiff asserts claims under
the Eight and Fourteenth Amendments.
STANDARD OF REVIEW
Rule 12(b)(6)
On a 12(b)(6) motion, dismissal is proper unless the complaint
“contain[s] sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’ ”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). When there
are well-pled factual allegations in the complaint, “a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Id. at 679.
The critical inquiry is whether the plaintiff has pled sufficient
facts to nudge the claims “across the line from conceivable
to plausible.” Twombly, 550 U.S. at 555. A motion to dismiss
will be denied where the allegations “allow[ ] the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at 678.
*2 Where a pro se Plaintiff is concerned, Courts must
construe the pleadings in a particularly liberal fashion.
Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Court
must therefore interpret the pleading “to raise the strongest
arguments that [it] suggest[s].” Harris v. City of N.Y., 607
F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation
omitted). Nevertheless, a pro se plaintiff’s pleading must
contain factual allegations that sufficiently “raise a right to
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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) ), and
the Court’s duty to construe the complaint liberally is not “the
equivalent of a duty to re-write it.” Geldzahler v. New York
Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009).
Exhaustion
The Prison Litigation Reform Act (“PLRA”) precludes the
filing of an action “with respect to prison conditions under
[42 US.C. § 1983] ... by a prisoner confined in any jail, prison
or other correction facility until such administrative remedies
as are available are exhausted.” Williams v. Corr. Officer
Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (internal quotations
omitted). Whether an inmate has exhausted all administrative
remedies turns on a review of “the state prison procedures
[available] and the prisoner’s grievance....” See Espinal v.
Goord, 558 F.3d 119, 124 (2d Cir. 2009) citing Jones v.
Bock, 549 U.S. 199, 218 (2007). Grievances at DOCCS are
governed by the Inmate Grievance Program (“IGP”), which
is based on a three-tiered system. Id. at 125. To adjudicate
an inmate complaint: “(1) the prisoner files a grievance with
the Inmate Grievance Resolution Committee (“IGRC”), (2)
the prisoner may appeal an adverse decision by the IGRC to
the superintendent of the facility, and (3) the prisoner then
may appeal an adverse decision by the superintendent to the
CORC. Id.; see also N.Y. Comp. Codes. R. & Regs., tit. 7, §
701.7 (1999).
Notably, exhaustion is an affirmative defense, not a pleading
requirement; thus, inmate plaintiffs need not “specially plead
or demonstrate exhaustion in their complaints.” Jones, 549
U.S. at 216. Instead, Defendants must demonstrate lack
of exhaustion. Colon v. N. Y.S. Dep't of Corr. & Cmty.
Supervision, No. 15-CV-7432(NSR), 2017 WL 4157372, at
*5 (S.D.N.Y. Sept. 15, 2017) citing Key v. Toussaint, 660 F.
Supp. 2d 518, 523 (S.D.N.Y. 2009).
Dismissal on a 12(b)(6) motion for failure to exhaust is
permissible where “it is clear on the face of the complaint
that the plaintiff did not satisfy the PLRA exhaustion
requirement.” Williams, 829 F.3d at 122; see also Parris
v. N.Y.S. Dep't Corr. Sews., 947 F. Supp. 2d 354, 261
(S.D.N.Y. 2013) (citing Johnson v. Westchester Cnty. Dep't
of Con: Med. Dep't, No. 10-CV-6309, 2011 WL 2946168,
at *2 (S.D.N.Y. July 19, 2011) for proposition that denial of
motion was appropriate where complaint was ambiguous as
to exhaustion). Further, on such a motion, where a court is
confined to the four corners of the complaint, the documents
attached thereto, and things of which it is entitled to take
judicial notice (see, e.g., Kleinman v. Elan Corp., 706 F.3d
145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321
(2d Cir. 2011) ), a court is only permitted to consider outside
documents related to exhaustion and submitted by defendants
under limited circumstances. See, Smith v. Miller, No. 15-
CV-9561 (NSR), 2017 WL 4838322, at *5 (S.D.N.Y. Oct. 23,
2017) (noting courts can take judicial notice of administrative
records in Section 1983 cases in limited circumstances).
Those include instances where “the complaint a) was the
standard pro se form complaint that has a check-box regarding
exhaustion, b) contained allegations clearly stating that the
inmate had exhausted his administrative remedies, or c)
clearly pointed to the fact that the inmate had, in fact, not
exhausted.” Cohn, 2017 WL 4157372, at *5.
Qualified Immunity
*3 “Qualified immunity shields federal and state officials
from money damages unless a plaintiff pleads facts showing
(1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of
the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011) citing Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). “If the law was clearly established, the immunity
defense ordinarily should fail, since a reasonably competent
public official should know the law governing his conduct.”
Harlow, 457 U.S. at 818-19. It is within the Court’s discretion
to determine the order in which the two prongs are analyzed.
Pearson v. Callahan, 555 U.S. 223, 236 (2009).
DISCUSSION
Plaintiff asserts § 1983 claims under the Eighth Amendment
against Defendants Black and Johnson. The essence of
Plaintiff’s claim is a failure to protect. Plaintiff’s complaint
suggest that Defendants' failure in processing or approving his
request for voluntary confinement resulted in his subsequent
assault. Or, construing the allegations liberally as the Court is
required to do, but for Defendants' failure in placing him in
voluntary protective custody, Plaintiff would not have been
attacked and injured by a fellow inmate.
Plaintiff’s 1983 complaint is that he was subjected to cruel and
unusual punishment in violation of the Eighth Amendment,
made applicable to the States by the Fourteenth. See Estelle
v. Gamble, 429 U.S, 97, 102 (1976) citing Robinson v.
California, 370 U.S. 660 (1962). “To prevail on an Eighth
Amendment claim, an inmate must first show that his injury
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is objectively a ‘sufficiently serious’ one.” Brims v. Burdi,
No. 03-CV-3159 (WHP), 2014 WL 1403281, at *2 (S.D.N.Y.
June 23, 2004) quoting Chance v. Armstrong, 143 F.3d 698,
702 (2d Cir. 1998). Additionally, a plaintiff must “show that
the defendant had knowledge of [the] prisoner’s problem
and was deliberately indifferent to [the] prisoner’s plight.”
Calhoun v. N. Y State Div. of Parole Officers, 999 F.2d 647,
654 (2d Cir. 1993) citing Sample v. Diecks, 885 F.2d 1099,
1110 (3d Cir. 1989).
Deliberate indifference requires a showing that the conditions
of incarceration posed a substantial risk of serious harm,
and that prison officials possessed sufficient culpable intent.
Hayes v. New York City Dep't Of Corr., 84 F.3d 614, 620
(2d Cir. 1996) citing Farmer v. Brennan, 511 U.S. 825,
834 (1994).The deliberate indifference requires a two prongs
analysis: substantial risk of serious harm, objective prong;
and sufficient culpable intent, subjective prong. Farmer, 511
U.S. at 834; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.
1996). Here, the objective prong is meet and not disputed.
Subjectively, the prison official acts with the requisite
sufficient culpable state of mind when he (or she) “has
knowledge that an inmate faces a substantial risk of serious
harm and he disregards that risk by failing to take reasonable
measures to abate the harm.” Hayes, 84 F.3d at 620.
Courts have denied deliberate indifference claims based
upon surprise attacks. See Fernandez v. N.Y.C. Dep't of
Corr., No. 08-CV-4294 (KMW), 2010 WL 1222017, at
*4 (S.D.N.Y. Mar. 29, 2010); Zimmerman v. Macomber,
No. 95-CV-0882(DAB), 2001 WL 946383 (S.D.N.Y. Aug.
21, 2001). Plaintiff alleges he provided advance notice to
Jackson and Black of threats and a possible attack. Plaintiff’s
allegation also suggest he identified the attacker(s), “gang
related Hispanic inmates” at the facility. Plaintiff’s allegations
suggest that Black and Jackson failed to take reasonable
measures to abate the impending attack. Thus, Plaintiff has
pled a plausible Eighth Amendment claim.
*4 Plaintiff’s Eighth Amendment claim, however, fails
for failure to exhaust his administrative remedies. This
case involves the use of the pro se form complaint
which contains the equivalent of a check-box exhaustion
section. The amended complaint is clear as to whether
Plaintiff alleges he grieved his claims. Plaintiff explicitly
states he filed grievances concerning, inter alia, the “5
sick call request,” the “non-protection grievances” and the
“foreseeable assault.” (See Amended Compl., Sect. IV., E
(1).) Because the exhaustion issue is an integral part of the
prisoner’s claims, the Court may refer to materials outside of
the complaint on a 12(b)(6) motion in determining whether a
plaintiff has exhausted. See Smart v. Goode, No. 04-CV-8850
(RWS), 2008 WL 591230, at *2 (S.D.N.Y. Mar. 3, 2008)
(recognizing that the Court’s previous opinion “[did] not
faithfully capture the subtlety of exhaustion doctrine in the
Second Circuit” and that the Court should have addressed
non-exhaustion as an affirmative defense).
In support of their motion, Defendants submit a declaration
from Karen Bellamy (“Bellamy”), the Director of the Inmate
Grievance Program (“IGP”). Bellamy avers that she is the
custodian of records maintained by the CORC, which is
tasked with rendering administrative decisions on grievances
filed by inmates. Based upon her review of the records,
she found that Plaintiff made other complaints concerning
meals, conditions of the facility, and “problems with security
staff” on December 17, 2013. Plaintiff, however, did not
file a grievance concerning the July 22nd incident nor his
request for voluntary confinement. Though Plaintiff attempts
to rebut Defendants' showing, mere conclusory statements
in opposition is insufficient. Accordingly, Plaintiff’s Eighth
Amendment claims must be dismissed.
Plaintiff also asserts a claim based on Defendant Black’s
failure to process his grievances, including his “5 sick call
grievances.” It is well settled that in order to succeed on a
§ 1983 claim, Plaintiff must show that he has been deprived
of a constitutional or other federal right. 42 U.S.C. § 1983.
Inmate grievances procedures are undertaken voluntarily by
the states and are not constitutionally required. Johnson v.
New York City Dep't of Health, No. 06-CV-13699 (BSJ)
(FM), 2008 WL 5378124, at *3 (S.D.N.Y. Dec. 22, 2008)
(internal citation omitted). Accordingly, a failure to process
a prisoner's grievance(s) does not in itself give rise to a
constitutional claim. Swift v. Tweddell, 582 F. Supp. 2d 437,
445-46 (W.D.N.Y. 2008) (internal citations omitted). This
claim must therefore be dismissed.
CONCLUSION
For the foregoing reasons, Defendants' motion is GRANTED
in part and DENIED in part. Plaintiff’s Eighth Amendment
and claims premised on the failure to process his grievances
are dismissed. The Clerk of the Court is respectfully directed
to terminate the motion at ECF No. 29. The parties are
directed to confer, complete and submit to the Court a
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completed case management plan (blank form attached)
within thirty (30) days of the date of this opinion.
SO ORDERED.
Attachment
All Citations
Not Reported in Fed. Supp., 2018 WL 2045094
Footnotes
1 The operative complaint is the Amended Complaint filed February 2, 2017. (ECF No. 22.)
2 In his complaint, Plaintiff appears to identify the “Black Correction Officer” as C.O. Javier Caban.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Mena v. City of New York, Not Reported in Fed. Supp. (2016)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2016 WL 3948100
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Jonathan MENA, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendants.
No. 13-cv-2430 (RJS)
|
Signed 07/19/2016
Attorneys and Law Firms
Jonathan Mena, Stormville, NY, pro se.
Omar Javed Siddiqi, Ryan Glenn Shaffer, New York City Law
Department, New York, NY, for Defendants.
OPINION AND ORDER
RICHARD J. SULLIVAN, District Judge
*1 Plaintiff Jonathan Mena, who is currently incarcerated
and proceeding pro se, brings this action pursuant to 42
U.S.C. § 1983 (“Section 1983”) against Correction Officer
Benjamin Eason (“Defendant”), alleging violations of the
Eighth Amendment. Now before the Court is Defendant's
motion for summary judgment. For the reasons set forth
below, the motion is granted.
I. BACKGROUND
A. Facts 1
On September 9, 2012, while incarcerated at the Otis Bantum
Correctional Center (“OBCC”) on Rikers Island, Plaintiff was
placed in an intake cell in the OBCC's receiving area, which
he shared with two other individuals. (56.1 Stmt. ¶¶ 2–3.)
Plaintiff alleges that the cell was extremely cold, vermin-
infested, and too small to accommodate three men. (See
Doc. No. 54-1 (“Compl.”) 4, 8.) Plaintiff further alleges that
these conditions, coupled with the constant noise made by
the two other inmates, prevented him from sleeping for the
entire 60-hour period that he was held in the cell. (See id. at
4.) Consequently, he asked Defendant, who was on duty, to
transfer him to a different cell. (56.1 Stmt. ¶¶ 7–8.) According
to Plaintiff, Defendant responded that there was “nothing he
could do” about the situation. (Id. ¶ 9; see also Doc. No. 54-2
(“Mena Dep.”) 59:5-8.)
Plaintiff avers that he filed a grievance with the OBCC to
complain about his experience in the cell. (See Compl. at 7.)
The New York City Department of Correction (“DOC”) has
an administrative grievance procedure, known as the Inmate
Grievance and Request Program (“IGRP”), for inmates
housed at facilities such as the OBCC. The IGRP, which was
available and in effect at all times relevant to this lawsuit,
requires that inmates first file a complaint with the Inmate
Grievance Resolution Committee (“IGRC”) within ten days
of the complained-of act. (56.1 Stmt. ¶¶ 11–12; see also Doc.
No. 54-3 (“IGRP Directive”) § IV(D)(1).) The IGRC then
attempts to resolve the grievance informally within five days,
and if the grievance is not informally resolved, then the inmate
may request a formal hearing before the IGRC. (56.1 Stmt. ¶
12; see also IGRP Directive §§ IV(G)-(H).) An inmate may
appeal the IGRC's decision to the commanding officer, or her
designee, and subsequent appeals may be taken to the Central
Office Review Committee (“CORC”). (56.1 Stmt. ¶ 13; see
also IGRP Directive §§ IV(I)-(J).) The CORC's decision is the
final and binding decision of the DOC; if an inmate disputes
the decision of the CORC, he may independently appeal to
the Board of Correction. (IGRP Directive at 47.) Finally, if
an inmate does not receive a timely disposition at any point
throughout the grievance process, he has the option of either
granting an extension of time to the relevant decisionmaker
(i.e., the IGRC, the commanding officer, or the CORC) or
appealing and proceeding to the next level of review. (56.1
Stmt. ¶ 14; see also IGRP Directive §§ IV(D)(9)(b), (10).)
*2 As Plaintiff himself acknowledges, after submitting the
grievance and receiving no response, he neither granted the
DOC an extension of time nor appealed. (See Compl. 7–
8; Opp'n 6.) In his Complaint, Plaintiff admits that he is
“still waiting” for a disposition of his grievance, but does
not indicate any steps he has taken to appeal any decision
before the IGRC. (See Compl. 7.) In response to a question
on the Southern District of New York Prison Complaint form
asking a plaintiff to “set forth any additional information that
is relevant to the exhaustion of your administrative remedies,”
Plaintiff repeated a number of his substantive allegations
against the OBCC staff, but did not state any information
relevant to the grievance process. (Id. at 5.) And in his
opposition brief in connection with this motion, Plaintiff
again notes that he filed “several grievances about the issues
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in question,” but he does not indicate any specific steps he
took to appeal to the IGRC or to pursue any other avenue of
appellate review within the IGRP. (Opp'n 6.)
B. Procedural History
On April 11, 2013, Plaintiff commenced this action by filing
a complaint against the City of New York, Correction Officer
Jaquon Pickwood (“Pickwood”), Correction Officer Sauda
Abdul-Malik (“Abdul-Malik”), and Defendant (collectively,
“Defendants”), pursuant to Section 1983, asserting violations
of his constitutional rights under the Eighth and Fourteenth
Amendments. (See Doc. No. 1.) On December 9, 2013,
Defendants moved to dismiss the Complaint. (Doc. No.
18.) On September 17, 2014, the Court granted Defendants'
motion to dismiss with respect to Plaintiff's claims against
the City of New York, Pickwood, and Abdul-Malik, and
Plaintiff's Fourteenth Amendment claims against Defendant
for failure to state a claim upon which relief can be
granted, but denied Defendants' motion to dismiss with
respect to Plaintiff's Eighth Amendment claim against
Officer Eason. (Doc. No. 29.) On September 11, 2015,
following the completion of discovery, Defendant filed the
instant motion for summary judgment, along with his brief
and his 56.1 Statement, arguing that Plaintiff failed to
exhaust administrative remedies, that his Eighth Amendment
conditions of confinement claim failed on the merits, and that
in any event, Defendant was entitled to qualified immunity.
(Doc. Nos. 53–55, 57.) Defendant also filed a notice pursuant
to Local Civil Rule 56.2 alerting Plaintiff of his obligation
to submit a responsive statement and informing him of the
consequences of not doing so. (Doc. No. 56.) In accordance
with Local Rule 56.2, this notice included copies of Federal
Rule of Civil Procedure 56 and Local Civil Rule 56.1.
(Id.) On October 14, 2015, Plaintiff filed a brief opposing
summary judgment and submitted several exhibits (see Doc.
No. 58), but he failed to submit a responsive 56.1 Statement.
Defendant submitted his reply on October 22, 2015. (Doc. No.
59 (“Reply”).)
II. LEGAL STANDARD
Pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure, summary judgment should be granted “if the
movant shows that 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). There is “no genuine dispute as
to any material fact” where (1) the parties agree on all facts
(that is, there are no disputed facts); (2) the parties disagree
on some or all facts, but a reasonable fact-finder could never
accept the nonmoving party's version of the facts (that is, there
are no genuinely disputed facts), see Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
or (3) the parties disagree on some or all facts, but even on
the nonmoving party's version of the facts, the moving party
would win as a matter of law (that is, none of the factual
disputes are material), see Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
In determining whether a fact is genuinely disputed, the court
“is not to weigh the evidence but is instead required to view
the evidence in the light most favorable to the party opposing
summary judgment, to draw all reasonable inferences in favor
of that party, and to eschew credibility assessments.” Weyant
v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to
show a genuine dispute, the nonmoving party must provide
“hard evidence,” D'Amico v. City of N.Y., 132 F.3d 145,
149 (2d Cir. 1998), “from which a reasonable inference
in [its] favor may be drawn,” Binder & Binder PC v.
Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation
marks omitted). “Conclusory allegations, conjecture, and
speculation,” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
1998), as well as the existence of a mere “scintilla of evidence
in support of the [nonmoving party's] position,” Anderson,
477 U.S. at 252, are insufficient to create a genuinely disputed
fact. A moving party is “entitled to judgment as a matter of
law” on an issue if (1) it bears the burden of proof on the
issue and the undisputed facts meet that burden; or (2) the
nonmoving party bears the burden of proof on the issue and
the moving party “ ‘show[s]’– that is, point[s] out ... – that
there is an absence of evidence [in the record] to support the
nonmoving party's [position].” See Celotex Corp. v. Catrett,
477 U.S. 317, 325 (1986).
*3 Typically, a “nonmoving party's failure to respond
to a [Local Civil] Rule 56.1 statement permits the court
to conclude that the facts asserted in the statement are
uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ.,
584 F.3d 412, 418 (2d Cir. 2009) (citing Gubitosi v. Kapica,
154 F.3d 30, 31 n.1 (2d Cir. 1998)). “This general rule applies
equally” to cases involving a pro se nonmoving party who
has been provided adequate notice of the consequences of
failing to properly respond to a summary judgment motion.
Pierre-Antoine v. City of N.Y., No. 04-cv-6987 (GEL), 2006
WL 1292076, at *3 (S.D.N.Y. May 9, 2006); see also Gilliam
v. Trustees of Sheet Metal Workers' Nat'l Pension Fund, No.
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03-cv-7421 (KMK), 2005 WL 1026330, at *1 n.2 (S.D.N.Y.
May 3, 2005). Even so, the Court “may in its discretion opt to
conduct an assiduous review of the record even where one of
the parties has failed to file such a statement,” Holtz, 258 F.3d
at 73, and the Court is obligated to construe pro se litigants'
submissions liberally, see McEachin v. McGuinnis, 357 F.3d
197, 200 (2d Cir. 2004).
Here, Plaintiff failed to submit a responsive Rule 56.1
statement, even though Defendant, pursuant to Local Civil
Rule 56.2, sent Plaintiff notice of his obligations under
Local Civil Rule 56.1 and Federal Rule of Civil Procedure
56 and sent copies of both rules. (Doc. No. 56). In light
of Plaintiff's pro se status, the Court has exercised its
discretion to independently review the record, which reveals
no controverted facts. See Holtz, 258 F.3d at 73. In fact,
as discussed below, Plaintiff's own submissions confirm the
material facts contained in Defendant's Rule 56.1 Statement.
III. DISCUSSION
Defendant argues that summary judgment should be granted
because Plaintiff has failed to comply with the administrative
exhaustion requirement of the Prison Litigation Reform Act
of 1995 (the “PLRA”). The Court agrees.
Under the PLRA, inmates bringing claims with respect
to prison conditions under Section 1983 must exhaust the
administrative remedies that are available at that prison
before proceeding in federal court. 42 U.S.C. § 1997e(a).
The PLRA's exhaustion requirement is “mandatory,” thus
“foreclosing judicial discretion.” Ross v. Blake, 136 S. Ct.
1850, 1857 (2016); see also Woodford v. Ngo, 548 U.S. 81,
84 (2006) (describing the “invigorated exhaustion provision”
as “[a] centerpiece of the PLRA's effort to reduce the
quantity of prisoner suits” (citations and quotation marks
omitted)). Accordingly, “the law is well-settled that the failure
to take an available administrative appeal, even when the
initial grievance receives no response, constitutes a failure to
exhaust available administrative remedies.” Garvin v. Rivera,
No. 13-cv-7054 (RJS), 2015 WL 3999180, at *3 (S.D.N.Y.
June 29, 2015); accord Johnson v. N.Y.C. Dep't of Corr.,
No. 13-cv-6799 (CM), 2014 WL 2800753, at *6 (S.D.N.Y.
June 16, 2014) (“Assuming that [p]laintiff filed a timely
grievance ... and received no response within five business
days[,] ... [p]laintiff ... could have taken the next step and
requested a hearing.”); Leacock v. N.Y.C. Health Hosp. Corp.,
No. 03-cv-5440 (RMB) (GWG), 2005 WL 483363, at *7
(S.D.N.Y. Mar. 1, 2005) (“[T]hat [plaintiff] allegedly did
not receive a response to her grievance does not excuse her
from failing to exhaust the appellate remedies available to
her.”); Burns v. Moore, No. 99-cv-966 (LMM) (THK), 2002
WL 91607, at *8 (S.D.N.Y. Jan. 24, 2002) (“Thus, even
if [p]laintiff received no response to his initial grievance,
[p]laintiff could have sought the next level of review, in this
case, to the prison superintendent.”).
*4 At the OBCC, where Plaintiff was incarcerated, an
inmate must exhaust several layers of review, even if the
inmate does not receive a timely disposition at the initial
stages. (56.1 Stmt. ¶ 12–14.) Here, as Plaintiff reveals in
his own complaint and brief in opposition to the motion
for summary judgment, he did not exhaust the OBCC
administrative procedure. (Compl. 7–8; Opp'n 6.) Rather, he
indicates that he filed a grievance but otherwise did not appeal
or seek further review through the IGRP process. (Compl.
7–8 (noting that he is “still waiting” for disposition of his
grievances and did not seek review at the next levels within
IGRP); Opp'n 6 (noting that he filed “several grievances about
the issues in question,” but omitting reference to any specific
steps taken to appeal)). Accordingly, Plaintiff failed to satisfy
the PLRA exhaustion requirement.
The Court next considers whether there is any basis for
excusing Plaintiff's failure to exhaust administrative remedies
at the IGRP. Last month, the Supreme Court forcefully
disapproved of judge-made exceptions to the PLRA's
exhaustion requirement, stressing the mandatory language
of the statute. See Ross, 136 S. Ct. at 1862 (“Courts may
not engraft an unwritten ‘special circumstances’ exception
onto the PLRA's exhaustion requirement.”) In doing so,
the Supreme Court expressly rejected the Second Circuit's
prior framework under Giano v. Goord, 380 F.3d 670
(2d Cir. 2004), and, by extension, Hemphill v. New York,
380 F.3d 680, 686 (2d Cir. 2004), which recognized a
“special circumstances” exception to the PLRA's exhaustion
requirement. See Williams v. Priatno, No. 14-4777, ___ F.3d.
____, ____, 2016 WL 3729383, at *4 (2d Cir. July 12, 2016)
(“[T]o the extent that our special circumstances exception ...
permits plaintiffs to file a lawsuit in federal court without
first exhausting administrative remedies that were, in fact,
available to them, those aspects of Giano and Hemphill are
abrogated by Ross.”).
Thus, post-Ross, the lone surviving exception to the PLRA's
exhaustion requirement is that embedded in its text: that an
inmate need only exhaust those administrative remedies that
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are “available” to him. Ross, 136 S. Ct. at 1862; see also
43 U.S.C. § 1997e(a). An inmate's failure to exhaust may
therefore be excused when his prison's grievance mechanisms
are literally or constructively “unavailable.” Ross, 136 S. Ct.
at 1858–59. The Supreme Court described three scenarios in
which administrative procedures could be “officially on the
books,” but “not capable of use to obtain relief,” and therefore
unavailable. Id. While not exhaustive, these illustrations
nonetheless guide the Court's inquiry. See Williams, 2016
WL 3729383, at *4 n.2. First, an administrative procedure
is unavailable when “it operates as a simple dead end –
with officers unable or consistently unwilling to provide
any relief to inmates.” Ross, 136 S. Ct. at 1859. If prison
administrators either lack the necessary authority to provide
any relief or possess authority but consistently decline to
exercise it, the administrative channels are not “available”
within the meaning of the PLRA. Id.; see also Booth v.
Churner, 523 U.S. 731, 736, 738 (2001) (“[T]he modifier
‘available’ requires the possibility of some relief.”). Second,
an administrative procedure is unavailable where it is “so
opaque that it becomes, practically speaking, incapable
of use.” Id. To meet this high bar, the administrative
remedy must be “essentially ‘unknowable.’ ” Id. Finally,
“a grievance process is rendered unavailable when prison
administrators thwart inmates from taking advantage of it
through machination, misrepresentation, or intimidation.”
Ross, 136 S. Ct. at 1860.
Here, Plaintiff has not alleged – let alone shown – that the
administrative procedures at the OBCC were unavailable
to him. Although Plaintiff's initial grievance received no
response, this alone is insufficient to show that the IGRP acted
as a mere dead end. As stated earlier, “the law is well-settled”
that an inmate's “failure to take an available administrative
appeal, even when the initial grievance receives no response,
constitutes a failure to exhaust available administrative
remedies.” Garvin, 2015 WL 3999180, at *3 (collecting
authorities). In short, the DOC's untimeliness in this case
is not enough to demonstrate the unavailability of an
administrative remedy. This is especially true in light of the
IGRP's built-in appeal mechanism, whereby inmates may
directly proceed to the next level of review in the event
of the DOC's failure to respond to a grievance. (See IGRP
Directive § IV(D)(9)(b), (10).) Furthermore, Plaintiff has not
introduced any facts to indicate that prison officials at OBCC
are “consistently unwilling to provide any relief to aggrieved
inmates.” Ross, 136 S. Ct. at 1859.
*5 Nor has Plaintiff pointed to any evidence that the
IGRP was “so opaque that it [became], practically speaking,
incapable of use” and therefore “essentially unknowable.”
Ross, 136 S. Ct. at 1859. While the Second Circuit recently
found that certain administrative grievance procedures at
a different New York State facility met this standard,
the Second Circuit's decision hinged on the “extraordinary
circumstances” specific to the case before it, for which
the applicable grievance regulations gave “no guidance
whatsoever.” See Williams, 2016 WL 3729383, at *1, *5.
Specifically, the plaintiff in Williams was housed in a
special housing unit and segregated from the regular prison
population; therefore, he gave his grievance complaint to a
correction officer to file on his behalf. Williams, 2016 WL
3729383, at *2. However, the plaintiff in Williams alleged
that the correction officer to whom he gave his complaint
failed to file it, id., and because the Second Circuit concluded
that the applicable grievance regulations gave “no guidance
whatsoever to an inmate whose grievance was never filed,”
id. at 5, it reversed the District Court's dismissal for failure to
exhaust. Here, by contrast the IGRP expressly guides inmates
in Plaintiff's position who have filed a grievance but have not
received a timely response and directs them to either grant an
extension of time to the relevant decisionmaker or to appeal to
the next level of review. (See IGRP Directive §§ IV(D)(9)(b),
(10).) In light of the IGRP's unambiguous directive, Plaintiff
has clearly failed to show that the IGRP was “essentially
unknowable.” See Ross, 136 S. Ct. at 1859.
Finally, the Court turns to the third scenario contemplated
by the Supreme Court, in which “prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Id.
at 1859. Plaintiff has not demonstrated, or even suggested,
that prison administrators obstructed or interfered with his
access to administrative remedies. See, e.g., Winston v.
Woodward, No. 05-cv-3385 (RJS), 2008 WL 2263191, at
*10 (S.D.N.Y. May 30, 2008) (concluding that plaintiff's
failure to exhaust administrative remedies was not excused in
light of his “failure to put forth any corroborating evidence,
either direct or circumstantial, to support his claims that he
suffered retaliation in the form of threats, harassment and
mail tampering”). Thus, this exception to the exhaustion
requirement is also clearly inapplicable.
Therefore, the Court concludes, as a matter of law, that
Plaintiff has failed to exhaust administrative remedies
available to him through the IGRP and has failed to offer any
facts to prove that administrative remedies were not available
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to him. Because Plaintiff's claims are barred for failure to
comply with the administrative exhaustion requirement of
the PLRA, Defendant's motion for summary judgment is
granted. 2
IV. CONCLUSION
For the reasons stated above, IT IS HEREBY ORDERED that
Defendant's motion for summary judgment is GRANTED.
Although Plaintiff has paid the filing fee in this action and
has not applied to proceed in forma pauperis, the Court
nevertheless certifies pursuant to 28 U.S.C. § 1915(a)(3) that,
in the event Plaintiff seeks to appeal this Order in forma
pauperis, any appeal would not be taken in good faith.
The Clerk is respectfully directed to terminate the motion
pending at docket number 53, to mail a copy of this order to
Plaintiff, and to close this case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 3948100
Footnotes
1 The following facts are drawn from Defendant's unopposed Local Civil Rule 56.1 Statement. (Doc. No. 55
(“56.1 Statement” or “56.1 Stmt.”).) In deciding Defendant's motion for summary judgment, the Court has
also considered Plaintiff's submission in opposition to summary judgment (Doc. No. 58 (“Opp'n”)), and has
conducted an independent review of the record, notwithstanding Plaintiff's failure to submit a statement
compliant with Local Civil Rule 56.1. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d. Cir. 2001) (noting
that district court “may in its discretion opt to conduct an assiduous review of the record even when” a party
has failed to comply with Local Civil Rule 56.1 (citations and quotation marks omitted)).
2 Although Defendant has raised other grounds for summary judgment, including that Plaintiff has failed to
establish an Eighth Amendment conditions of confinement claim, and that Defendant is entitled to qualified
immunity, the Court finds it unnecessary to address these other arguments because of Plaintiff's failure to
exhaust remedies.
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© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Ratigan v. CSX Transportation, Inc., N.D.N.Y.,
September 30, 2025
2019 WL 1386047
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Edward NIEDZIEJKO, Plaintiff,
v.
DELAWARE & HUDSON RY. CO.,
INC., d/b/a Canadian Pac. Ry., Defendant,
1:18-CV-0675 (GTS/CFH)
|
Signed 03/27/2019
Attorneys and Law Firms
OF COUNSEL: GERARD J. MARTILLOTTI, ESQ., JERRY
MARTILLOTTI & ASSOCIATES, PC, 4221 Ridge Avenue,
P.O. Box 18509, Philadelphia, Pennsylvania 19129, Counsel
for Plaintiff.
OF COUNSEL: MICHAEL D. BILLOK, LLP, BOND,
SCHOENECK & KING, PLLC, 22 Corporate Woods
Boulevard, Suite 501, Albany, New York 12211, Counsel for
Defendant.
OF COUNSEL: TRACEY H. DONESKY, ESQ., NICOLE
FAULKNER, ESQ., STINSON LEONARD STREET LLP,
50 South Sixth Street, Suite 2600, Minneapolis, Minnesota
55402, Co-Counsel for Defendant.
DECISION and ORDER
Hon. Glenn T. Suddaby, Chief U.S. District Judge
*1 Currently before the Court, in this Federal Railway
Safety Act action filed by Edward Niedziejko (“Plaintiff”)
against Delaware & Hudson Railway Company, Inc.
(“Defendant”), is Defendant's motion to dismiss Plaintiff's
Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6)
or, in the alternative, motion for summary judgment pursuant
to Fed. R. Civ. P. 56. (Dkt. No. 12.) For the reasons set forth
below, Defendant's motion is granted.
TABLE OF CONTENTS
I. RELEVANT BACKGROUND...––––
A. Plaintiff's Complaint...––––
B. Statement of Undisputed Material Facts...––––
C. Parties' Briefing on Defendant's Motion...––––
1. Defendant's Memorandum of Law...––––
2. Plaintiff's Opposition Memorandum of Law...––––
3. Defendant's Reply Memorandum of Law...––––
II. GOVERNING LEGAL STANDARDS...––––
A. Standard Governing Motion to Dismiss for Lack of
Subject-Matter Jurisdiction...––––
B. Standard Governing Motion to Dismiss for Failure to
State a Claim...––––
C. Standard Governing Motion for Summary
Judgment...––––
D. Standard Governing Plaintiff's Claims and
Defendant's Defenses...––––
III. ANALYSIS...––––
A. Analysis of Plaintiff's Motion to Dismiss for Lack of
Subject-Matter Jurisdiction...––––
B. Analysis of Plaintiff's Claim of Discriminatory
Reprimand...––––
1. Failure-to-State-a-Claim Analysis...––––
2. Summary-Judgment Analysis...––––
C. Analysis of Plaintiff's Claim of Discriminatory
Termination...––––
1. Failure-to-State-a-Claim Analysis...––––
2. Summary-Judgment Analysis...––––
I. RELEVANT BACKGROUND
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A. Plaintiff's Complaint
Generally, liberally construed, Plaintiff's Complaint alleges as
follows. (Dkt. No. 1.)
Staffing Reduction
Before late 2015, Plaintiff was hired as a Special Agent in
Defendant's Police Department. (Id.) Starting in late 2015,
the number of police officers available to staff Defendant's
Police Department was reduced (due to Defendant's closure
of a section of its Police Department in Taylor, Pennsylvania,
as a result of a sale of part of Defendant's business in
August of 2014). (Id.) Subsequently, in 2015 and 2016, this
reduction was exacerbated by work injuries and retirements.
(Id.) Because of these reductions, at any given time, there
were three or fewer special agents or police officers available
to staff Defendant's Police Department for the entire Eastern
United States, including Upstate New York. (Id.) As a result,
on several occasions, Plaintiff worked a full shift and then,
either before returning home or a short time after arriving
home, was required to return to work to respond to a call to
work for an additional period lasting several hours. (Id.)
Safety Complaints
Starting on or about March 30, 2016, and continuing
into June of 2016, Plaintiff complained to his supervisors,
union representatives, and colleagues about safety issues
resulting from the aforementioned reduction in staffing and
requirement of excessive overtime. (Id.) More specifically,
Plaintiff complained that being required to work for extended
periods of time without adequate rest of days off posed
safety issues to the Albany Police Unit of the Canadian
Pacific Railway starting in the fall of 2015. (Id.) Plaintiff's
fellow employees, including Michael Savokinas, joined in
these complaints. (Id.) However, rather than take steps to
resolve Plaintiff's concerns, Plaintiff's supervisors made it
known that any safety complaints would lead to trouble for
the person making them. (Id.) Plaintiff responded by letting
it be known that he was going to have Defendant's staffing
policy evaluated by the Occupational Safety and Health
Administration (“OSHA”). (Id.)
Review of Shotgun Logs
*2 Immediately thereafter, Defendant initiated its first-ever
review of the shotgun logs of its special agents, including
Plaintiff, from October 1, 2015, through March 31, 2016.
(Id.) Pursuant to Defendant's policy (which was put in place
in 2009), shotgun logs were to be kept by all special agents
who carried a shotgun, and were to be reviewed and signed
by all supervisors. (Id.) Since 2013, Plaintiff had not filled
out a shotgun log because he had not regularly carried a
shotgun. (Id.) Defendant conducted an intensive investigation
of Plaintiff in June of 2016, then brought disciplinary charges
against him for (1) not logging out a shotgun in August 2015
(three months before the beginning of the audit period), and
(2) violating the shotgun log policy in March 2016 based on
the testimony of his supervisor (to whom Plaintiff had made
a safety complaint). (Id.) No similar investigation was made
against Defendant's other employees, despite the fact that
Plaintiff's direct supervisor (Sergeant Seymour) himself was
found to have not reviewed shotgun logs on a monthly basis
as required by the policy. (Id.) After finding Plaintiff guilty of
the disciplinary charges, Defendant reprimanded him. (Id.)
Call to Mechanicsville
On June 9, 2016, while on duty as a special agent working
for Defendant, Plaintiff received a call from Defendant's
dispatcher directing him to go Mechanicsville, New York, to
investigate a report of teenage trespassers allegedly placing
debris on the train tracks. (Id.) Plaintiff responded to the
call, worked with local law enforcement, and checked the
area for more than an hour. (Id.) After determining that
the area was clear, Plaintiff called the train crew on the
radio and was informed that the train had passed the area
without any issue. (Id.) As a result, Plaintiff closed the
call and deemed the issue resolved. (Id.) Shortly thereafter,
Plaintiff's supervisor, Commander Szymaszek, inquired about
the events in Mechanicsville, and Plaintiff advised him that
the matter had been resolved without issue. (Id.)
On June 19, 2016, Defendant brought a disciplinary
charge against Plaintiff for deceit in his conversation with
Commander Szymaszek based on the fact that Plaintiff
had not responded to the actual location of the call. (Id.)
After being informed of the charges, Plaintiff informed his
supervisors that the dispatcher had sent him to the wrong
location. (Id.) Plaintiff's supervisor listened to the dispatch
tape and found that Plaintiff had indeed been sent to the
wrong location. (Id.) However, Defendant did not provide this
information to Plaintiff or his representatives. (Id.) Instead,
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after an investigation and hearing, Defendant terminated
Plaintiff's employment. (Id.)
Claims
Generally, based on these factual allegations, the Complaint
asserts the following two claims: (1) a claim that Plaintiff was
discriminatorily reprimanded for reporting, in good faith, a
hazardous safety condition in violation of the Federal Railway
and Safety Act, 49 U.S.C. § 20109(1)(A) (“FRSA”); and
(2) a claim that Plaintiff was discriminatorily terminated for
reporting, in good faith, a hazardous safety condition, also in
violation of the FRSA. (Id.)
B. Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted
and supported by Defendant in its Rule 7.1 Statement and
not successfully denied by Plaintiff in a Rule 7.1 Response
that both matched the paragraphs of Defendant's Rule 7.1
Statement and specifically cited the record where the factual
issue arises, as required by Local Rule 7.1(c) of the Local
Rules of Practice for this Court. (Compare Dkt. No. 15
[Def.'s Rule 7.1 Statement] with Dkt. No. 24 [Plf.’s Rule 7.1
Response].)
The Parties
1. The Delaware & Hudson Railway Company, Inc. d/b/
a Canadian Pacific (“CP” or “D&H”) is a Class I railroad
providing freight rail transportation services in parts of the
United States. On September 18, 2015, CP sold the southern
portion of the D&H to another Class I Railroad, which
covered 280 miles of Defendant's rail track and included
operations in Pennsylvania. Since the fall of 2015, CP has
operated only in New York. 1
*3 2. To ensure and promote railway safety, Defendant
has its own “CP Police Services” (“CPPS”) railway law
enforcement agency that works closely with communities,
other law enforcement, and government agencies across the
rails where it operates. CPPS's mission is to protect CP's
employees, property and passengers, and the lading of its
customers. CP operates 24 hours per day and 7 days per
week. 2
3. CPPS has police detachments in various locations in the
U.S., which provide law enforcement services to multiple
separate subsidiary entities, including the D&H and Soo Line
Railroad Company.
4. In addition to the detachment on the D&H, CPPS also
has U.S. detachments located in the following locations:
Detroit, Michigan; Bensenville, Illinois; and several other
U.S. locations.
5. The police detachment on the D&H is the only
unionized detachment for which the terms and conditions
of employment for its Special Agents, like Plaintiff,
are governed by a Collective Bargaining Agreement (the
“CBA”). The CBA is between the D&H and the Police
Department employees represented by the Allied Services
Division of the Transportation Communications International
Union (the “Union”).
6. Plaintiff worked in law enforcement for Defendant as a
Special Agent in the CPPS Northeast U.S. District (out of the
“Albany Detachment”).
7. Plaintiff was employed by Defendant from June 2001 until
September 2016.
8. For approximately one-and-one-half years, Plaintiff
worked part-time for the Ballston Spa Police Department
while he was also employed with CP. More specifically, he
worked the midnight shift (11 p.m. to 7 a.m.) at the Ballston
Spa Police Department on his days off from his CP schedule.
The Albany CPPS Police Detachment
9. The CPPS for the D&H was historically comprised
of police detachments in the following locations: Taylor,
Pennsylvania; Binghamton, New York; Oneonta, New York;
Buffalo, New York; Albany, New York; and Clifton Park,
New York. 3
10. During Plaintiff's employment, CP employed Special
Agents Edward Niedziejko and REDACTION 1 in Albany,
New York and two Special Agents, REDACTION 2 and
REDACTION 3, in Taylor, Pennsylvania. 4
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*4 11. From around the time he started with CP until
September 2015, Plaintiff and REDACTION 1 were the only
two Special Agents in the Albany detachment. 5
12. For approximately two years following the retirement
of the then-manager of the Albany detachment until
September 2015, Special Agent REDACTION 2 served as
acting manager to oversee the day-to-day activities of the
Pennsylvania and New York detachments on the D&H.
However, he remained a union employee during this time.
13. Further, as noted above, REDACTION 2 worked out of
the Pennsylvania detachment. The Albany and Pennsylvania
detachments ultimately reported to District Inspector Dennis
Szymaszek, who worked out of Detroit, Michigan. 6
Defendant Sells the Southern Part of Its Rail Line,
Which Results in Less Territory to Cover and the Albany
Detachment Gaining an Additional Special Agent
*5 14. In and around mid-November 2014, D&H announced
it was selling the southern portion of its rail line to another
Class I rail carrier, the Norfolk Southern (“NS”). 7
15. After review and approval was obtained from the U.S.
Surface Transportation Board on May 15, 2015, the sale was
completed on September 18, 2015. 8
16. At that time, REDACTION 2, out of the Pennsylvania
detachment, left CP and took a position with Norfolk
Southern (“NS”). The other Pennsylvania Special Agent,
REDACTION 3, remained employed with CP, but moved to
the Albany detachment following the sale.
17. Accordingly, as of mid-September 2015, CP increased its
Special Agents in the Albany detachment from two to three
agents. 9
Supervisory Structure Changes
at the Albany Police Detachment
18. Sergeant Seymour has been employed with CP since
2004. 10
19. Sergeant Seymour worked as a Special Agent (then titled
“Inspector”) from 2004 through 2011, at which time he took
a position in management as Senior Investigator in Charge
(later titled “Sergeant”).
20. Beginning in 2011, in his new role as Senior Investigator,
he began supervising the police officers/Special Agents of the
Detroit, Michigan, detachment. He works out of the Allen
Park, Michigan, detachment office. 11
*6 21. In September 2015, Sergeant Seymour was given
additional responsibility to temporarily supervise the Albany
detachment.
22. In and around February 2016, Sergeant Seymour was
permanently named as supervisor for the Albany detachment.
He remained in that position during the times relevant to
this matter. Sergeant Seymour continued to reside, work, and
supervise the Detroit detachment, but the Albany detachment
was added to his supervisory responsibilities.
23. Because the Special Agents working out of the
Detroit, Michigan, detachment are not unionized, this was
Sergeant Seymour's first experience supervising unionized
employees. 12
24. Also around this time, Bobby Walker was hired as the new
Deputy Chief following his predecessor's retirement. 13
Plaintiff's Unionized Employment with CP
25. Plaintiff began working for Defendant in its CPPS unit in
2001.
26. He began his CP employment as a Special Agent and
remained employed in this Unionized position at all times
relevant to this matter.
27. Before working for CP, Plaintiff worked in law
enforcement as a police officer for the New York State Park
Police and the Corinth Police Department.
28. Plaintiff testified that, in his capacity as a police officer
and Special Agent, he appreciated and understood the need to
be truthful and credible.
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29. Plaintiff testified that his positions as a police officer and
Special Agent involved testifying in a court of law, which
he was familiar with and had done with regularity, including
while employed at CP.
30. Plaintiff worked as a Special Agent until his dismissal on
September 9, 2016. 14
The Special Agent Position
*7 31. Special Agent duties include handling of such law
enforcement matters as emergency response, special events
policing, risk reduction operations, investigation of criminal
acts, crime prevention, and public safety programs. 15
32. Responsibilities of a CPPS Special Agent include criminal
and collision investigations, emergency response to incidents
and calls for service, protection of railway assets, operations
and personnel, and work with other law enforcement agencies
during investigations and in joint enforcement operations.
Further, Special Agents must (a) maintain good working
knowledge of relevant legislation, policies and procedures,
(b) effectively and efficiently plan, manage and prioritize
workload and conduct general and directed patrols, (c) be
prepared to travel on assignments, in response to incidents
and for training, (d) possess strong communication skills, and
(e) prepare comprehensive reports and prosecution files and
deliver court testimony. 16
33. CPPS Special Agents for Defendant in New York,
including Plaintiff, have arresting power and are authorized to
carry a firearm as part of their position. During their service,
a CP-issued handgun is personally assigned to each Special
Agent; shotguns are located in the police detachment and,
pursuant to company policy, are to be signed in and out by
completing a shotgun user log. 17
*8 34. As a Special Agent, Plaintiff would “protect
the company's interest and minimize lawsuits against the
company for people getting hurt on railroad property,
trespasser accidents ... [and] [t]heft from the railroad.”
35. Communication between agents was an important aspect
of being a Special Agent for CP. 18
36. The Special Agent position is considered safety-
sensitive. 19
37. As a Special Agent for Defendant in New York, Plaintiff
carried a firearm, and admits the importance of being honest
and trustworthy. He also admits that the reports he prepared
as a Special Agent were essential.
The Union Collective Bargaining Agreement (“CBA”)
38. A CBA governed the terms and conditions of Plaintiff's
employment with CP.
39. As a CPPS employee, Plaintiff was represented by the
Union. The Union and CP negotiated the terms and conditions
of Plaintiff's employment as Special Agent pursuant to the
CBA.
40. One of the contractual provisions of the CBA provides
Union employees, like Plaintiff, the right to a fair and
impartial hearing before the imposition of any discipline. 20
41. The purpose of the formal hearing is to develop the
facts regarding the incident and determine the employee's
responsibility, if any, in connection with the incident.
42. Union employees, like Plaintiff, can be represented at a
formal investigation/hearing by a Union representative, and
have the opportunity to present their cases through testimony,
exhibits, witnesses, and cross-examination.
43. The CBA also affords Union employees the opportunity
to appeal any determination made pursuant to a formal
investigation/hearing up to the highest designated officer of
the company.
44. If an employee is not satisfied with the outcome of his/
her appeal, the CBA permits him/her to further appeal the
decision to a federal arbitration panel under the Railway
Labor Act (“RLA”).
*9 45. Plaintiff exercised his right to appeal his dismissal.
46. The CBA contains terms such as rates of pay, seniority,
vacation, overtime, benefits and other terms as set forth in
the contract. For instance, Article 16 of the CBA addresses
“Changing Assigned Starting Time and Rest Days,” Article
21 addresses “Hours of Work,” Article 23 addresses the
“Work Week,” and three separate Articles of the CBA
(Articles 24, 25 and 26) are devoted exclusively to Overtime.
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More specifically, Article 24 outlines when and under what
circumstances work will qualify as Overtime, Article 25
addresses “Absorbing Overtime,” and Article 26 addresses
“Authorizing Overtime.” Further, Article 41 of the CBA
addresses Health and Safety, stating, inter alia, that “[t]he
health and safety of employees shall be protected. Employees
will not be required to work under unsafe or unhealthy
conditions.” 21
47. If a dispute or issue arose in connection with terms of the
CBA, the CBA had a procedure that governed how to grieve
or resolve it. 22
48. Plaintiff received a copy of the CBA while employed at
CP.
Relevant CPPS Policies & Procedures Manual
49. The CPPS mission is to assist Canadian Pacific to become
the safest and most reliable railway in North America by
enhancing public safety, supporting service reliability by
reducing train delay, protecting railway personnel, assets,
operations and information, and enforcing the law and
bringing offenders to justice. 23
50. Because it is the responsibility of all Canadian Pacific
Police Service Employees to protect life, property and railway
operations through expeditious and appropriate response to
reported incidents, Defendant has a policy requiring that
employees document all calls for service and subsequent
responses accurately and appropriately. 24
*10 51. The Code of Conduct contained at Section 1.2.1 of
the CPPS Policy & Procedures Manual (“CPPS”) provides
that “Neglect of Duty” includes “[f]ailing to report a
matter that is a member's duty to report[, or] [o]mitting
to make necessary entries in a book or record.” The same
section of the CPPS Manual also defines “Deceit” as
including, but not limited to, “[k]nowingly making or signing
false or misleading statements in any report or record,”
or “[w]illfully or negligently making false, misleading or
inaccurate statements pertaining to [the employee's] job
duties.” 25
52. Section 3.3 of the CPPS Manual pertaining to Firearms
provides that, “[s]hotguns may be carried in CPPS vehicles
by members ... [and] [a] member will sign out a shotgun by
completing the User Log.” 26
53. A CPPS Service Order issued June 17, 2009, and effective
since July 1, 2009, outlines the CPPS Shotgun Policy which
further provides that “[a] shotgun user form ... will be
maintained at every detachment. Members will sign out a
shotgun at the commencement of duty and sign back in at the
end of duty.” 27
54. The shotgun user logs serve a number of important
and legitimate purposes, including tracking frequency of
use, condition of the weapon, recorded maintenance, and
serviceability issues, and identifying who the users of the
equipment were during a specific time period. 28
*11 55. Plaintiff acknowledged receipt of the CPPS Policy
and Procedure Manual.
56. Plaintiff is familiar with the rule and policy regarding the
shotgun user log requirement. 29
57. CPPS Police Headquarters periodically directs audits to be
conducted of the shotgun user logs for CPPS detachments. 30
58. One such audit of shotgun user logs was ordered for all
CPPS detachments across the United States (and Canada)
in June 2016 concerning the time period from October 1,
2015, to March 31, 2016. Information discovered through this
regular system-wide audit gave CP reason to notice Plaintiff
for hearing under the CBA as discussed herein. 31
59. The 2016 Shotgun User Logs Audit was not the first
shotgun user log audit headquarters had conducted, a prior
one having been conducted in 2013. 32
Plaintiff's Prior Counseling and Performance Coaching
60. In a performance evaluation of Plaintiff's from 2004,
while rating Plaintiff's communications and interactions
skills, his then-supervisor commented as follows: “Uses
communication breakdowns to excuse failures. Does not
take constructive criticism or corrections well. Needs to take
responsibility for situations and act responsibly. Trust? Is trust
an issue? With him? About him? Discussed same.” Moreover,
while rating Plaintiff's goalsetting and commitment to task,
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Plaintiff's then-supervisor commented as follows: “Needs to
take the lead, see things, change things, do things, report
things. Don't always wait for direction.” 33
*12 61. In a prior email to Plaintiff from 2003, his then-
supervisor followed up with him regarding a report that
had not been completed by Plaintiff in the time or manner
expected by the then-supervisor. 34
62. In another email to Plaintiff, his then-supervisor corrected
a case number misidentified by Plaintiff on a report and said,
“Please remember what I said about the accuracy of reports.
It is essential to what we do.” 35
63. Plaintiff admits that a citizen lodged an Unsafe Vehicle
Operation Complaint against him during his employment in
2006, which his then-supervisor met with him about.
64. During the time period from September through the
end of December 2015, Plaintiff's new supervisor, Sergeant
Seymour, found the Albany detachment lacking in many
areas and he began working with the Special Agents there to
bring them up to CPPS standards. This included reminders
and coaching on such tasks and responsibilities as vehicle
inspections, booking travel, where to focus policing efforts,
and following CPPS policies generally. Sergeant Seymour
stated that the New York detachment was “lacking of maybe
some previous oversight.” 36
65. District Inspector Dennis Szymaszek and Sergeant
Seymour held a video conference call with the three New
York Special Agents in February 2016 to discuss performance
issues. Sergeant Seymour recalls this meeting as a discussion
of the detachment's “shortcomings.” 37
*13 66. On February 29, 2016, Sergeant Seymour advised
Plaintiff that his e-mail signature was not compliant with the
CPPS policy that had been published several years before
then. 38
67. On March 1, 2016, Plaintiff was one of several who had
to be reminded to submit his First Aid Certification. 39
68. In mid-March 2016, when performance of the group was
still not meeting CPPS expectations, Sergeant Seymour had
individual phone conversations with each agent, including
Plaintiff, followed by an email on March 16, 2016, to
summarize the calls. This email stated as follows:
Since taking over Sgt. duties for
NY, in the last 6 months, we've
had several instances of policy
and procedure violations, disregarding
instructions, disregarding the schedule
and a general lack of knowledge of
equipment, processes and policy. Not
all apply to all of you equally but it is
very clear we are far from where you
need to be as a detachment and it is
noticed above Dennis and I. This is not
the kind of notice you want.
69. On March 28, 2016, Sergeant Seymour e-mailed the NY
agents, including Plaintiff, about overdue reports and the
importance of completing them on time, which he noted that
he had already discussed with them. 40
70. On May 11, 2016, Deputy Chief Walker met with the
New York agents individually, followed by a group meeting to
impress upon them the importance of following CPPS policy
and procedure.
*14 71. In May of 2016 Sergeant Seymour counselled
Plaintiff on items including, but not limited to, “starting work
on time on the property[,] [s]tarting ... and ending at the
scheduled shift[,] [n]ot changing shifts without notification[,]
[f]ollowing up on various incidents[,] and [s]preading out
patrols and enforcement efforts.” Sergeant Seymour further
noted that the New York agents had “a stretch of territory
and they would maybe, for example, focus on a handful of
locations that we weren't having any issues with.” Sergeant
Seymour coached Plaintiff in his May 2016 review that he
was “at risk of failing to complete many goals.” 41
72. On July 19, 2016, Sergeant Seymour followed up with
Plaintiff and said, “I still need your vehicle log.”
CPPS Conducts Shotgun User Log Audit in June
2016, Which Leads to CBA Hearing for Plaintiff's
Alleged Violation of Maintaining Shotgun Log Policy
73. In early June 2016, CPPS Headquarters conducted an
audit of the shotgun user logs. The audit requested managers
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of all the various detachments to forward shotgun user logs to
Staff Sergeant Jason Drader. 42
74. On June 6, 2016, Sergeant Seymour forwarded the
shotgun user logs for the Detroit detachment in response to
Staff Sergeant Drader's request and indicated he was working
on getting the New York logs sent to him. 43
75. On June 8, 2016, after trying to obtain them through other
means, Sergeant Seymour asked Plaintiff to scan and send him
the shotgun user logs for the Albany detachment. However,
Plaintiff responded that he does not carry a shotgun. In that
e-mail dated June 8, 2016, Plaintiff wrote, “We don't have
a shotgun user log at the detachment. REDACTION 3 and
myself don't carry a shotgun and they are in the Clifton Park
Office. REDACTION 1 has the other shotgun in his vehicle
and does a log on his computer.” 44
76. Sergeant Seymour conducted further review of the matter
and, on June 15, 2016, asked Plaintiff when he had last carried
a shotgun. By e-mail response on June 15, 2016, Plaintiff
said he had not carried a shotgun since February 20, 2013,
and he supplied a shotgun log showing his last date of use as
February 20, 2013. 45
77. Based on the information received, Sergeant Seymour
prepared and sent a written summary to the Inspector
of Professional Standards, Training & Personnel, Douglas
Kinloch. The summary detailed the facts and information
pertaining to the shotgun user log matter and asked Inspector
Kinloch for his assessment of whether the matter warranted a
hearing pursuant to the CBA. 46
*15 78. A hearing notice was issued to Plaintiff pursuant to
the CBA by letter dated June 17, 2016. 47
79. The June 17, 2016, hearing notice advised Plaintiff that
he was to attend a formal hearing pursuant to the CBA to
determine his responsibility, if any, and whether he violated
any Company Rules or Polices in connection with his alleged
failure to complete shotgun user logs for the period covering
August 2015 to March 2016. 48
80. At Plaintiff's request, the hearing was rescheduled from
June 23, 2016, to August 18, 2016. Plaintiff was represented
by his Union at the hearing. During the hearing, Plaintiff had
an opportunity to provide testimony, present exhibits, and
question and cross-examine witnesses. 49
81. The following facts were confirmed and/or newly
revealed during the hearing of August 18, 2016:
a. the fact that, on June 8, 2016, pursuant to CPPS
headquarters' directive that an audit be conducted of the
shotgun user logs, Sergeant Seymour asked Plaintiff for a
copy of the shotgun user logs for the Albany detachment;
b. the fact that Plaintiff responded, however, that he does
not carry a shotgun and has not done so since February 20,
2013;
c. the fact that he supplied a shotgun log showing his last
date of use on February 20, 2013;
d. the fact that District Inspector Szymaszek also testified
that, on at least two occasions–August 26, 2015, and
September 16, 2015–he personally saw Plaintiff with a
shotgun in his vehicle;
e. the fact that, indeed, at the CBA hearing, when
questioned about his possession of a shotgun between
August 25, 2015, and September 16, 2015, Plaintiff
admitted that he had carried a shotgun and failed to fill out
the shotgun user log;
f. the fact that, more specifically, Plaintiff admitted that he
met with the District Inspector on August 26, 2015, and
September 16, 2015;
g. the fact that he also admitted to switching out his shotgun
on both dates and that he failed to complete a user log either
time;
h. the fact that Plaintiff's only defense was that he was
told sometime around February 2013 that he did not have
to follow the shotgun log policy; however, he offered no
evidence, other than his own testimony, to support this
statement;
i. the fact that Plaintiff testified that Sergeant Seymour
“knew that wasn't true” when trying to explain the
inconsistency of his assertion in his e-mail reply that he last
carried a shotgun on February 20, 2013, with his testimony
during the CBA hearing that he carried a shotgun on August
25, 2015, and September 16, 2015;
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j. the fact that Plaintiff received the CPPS Manual and
acknowledged receipt of such as well as of the shotgun user
log policy on October 15, 2013; and
*16 k. the fact that Plaintiff had, in fact, carried a shotgun
after February 20, 2013, despite his written statements to
Sergeant Seymour to the contrary, and admitted that he did
not complete a shotgun log on any occasion that he carried
a shotgun after February 20, 2013. 50
82. By letter dated September 9, 2016, CP issued Plaintiff a
reprimand for his failure to comply with the shotgun user log
policy in 2016. 51
83. Plaintiff was not pulled from service at any time in
connection with the shotgun log incident. He was not
suspended. He suffered no loss of pay. He lost no benefits.
His hours of work were not affected, and Plaintiff continued
working as a Special Agent.
Events Leading to Plaintiff's Dismissal for Established
Rule Violation Pursuant to CBA Procedure
84. On June 10, 2016, District Inspector Szymaszek was
reviewing a CP Police Incident Report and observed that, on
the previous day, June 9, 2016, a train crew had reported that a
group of juveniles had placed obstructions on a track, the train
had stopped, and the train crew had requested police support
to assist. 52
85. Plaintiff and local police were notified. 53
86. Plaintiff reported to the CP dispatch that he had responded
to the location, that the track was clear, and that the youths
were gone when he arrived. 54
87. On June 10, 2016, District Inspector Szymaszek asked to
discuss the incident by phone with Plaintiff to follow-up and
see if there was a need to complete a train-delay report.
88. Plaintiff contacted District Inspector Szymaszek by
phone, discussed the incident with him, and said there was no
need for continued investigation.
89. District Inspector Szymaszek instructed Plaintiff to obtain
the train crew information, interview the crew to see if
there was a description of the youths, gather train delay
information, and gather any other relevant information. 55
*17 90. Having not received the follow-up information he
requested, District Inspector Szymaszek followed up himself
on Monday, June 13, 2016. He called the police dispatch
and learned that Plaintiff had been dispatched to the wrong
location on June 9, 2016, and never went to the scene of the
actual reported track obstructions. 56
91. District Inspector Szymaszek's continued investigation
revealed that, while Plaintiff was at the wrong location on
June 9, 2016, the train crew informed him by radio that he had
been dispatched to the wrong location.
92. Plaintiff confirmed this record of events, noting that he
learned of the correct location from the crew engineer, who
told him that there were kids around the train crossing but that
the train did not have to slow or stop.
93. Plaintiff also confirmed that the CBA hearing transcript
would accurately reflect the events on June 9, 2016.
94. District Inspector Szymaszek contacted the local
Mechanicsville Police Department, spoke with the officer
who had responded to the incident, and obtained a copy of his
report. 57
95. The responding police officer's report confirmed that,
on June 9, 2016, Plaintiff became aware that he had been
dispatched to the wrong location and that he was given
the correct location when he arrived on the scene in
Mechanicsville. 58
96. Plaintiff never went to the correct location.
97. On June 9, 2016, and the following days, Plaintiff never
told dispatch or District Inspector Szymaszek that, when he
reported that the track was clear and youths were gone, he was
actually referring to the location to which he was dispatched
as opposed to the location of the incident. 59
98. Plaintiff claims that he “used officer discretion to say well,
the call's handled.”
99. On June 18, 2016, District Inspector Szymaszek sent a
written summary of his field investigation of the incident
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of June 9-10, 2016, described above, to the Inspector of
Professional Standards, Training & Personnel, Doug Kinloch.
100. This written summary outlined the steps District
Inspector Szymaszek took to investigate the incident. 60
*18 101. Plaintiff was noticed for hearing regarding the
incident of June 9, 2016. 61
102. A formal hearing was held on August 18, 2016. At the
formal hearing, Plaintiff was represented by his union and had
an opportunity to provide a statement and question and cross-
examine witnesses.
103. In addition to the above, five facts were confirmed and/or
newly revealed at the CBA hearing or confirmed by Plaintiff
in his statement. 62
a. Specifically, Plaintiff stated as follows:
Q: So, Mr. Niedziejko can you explain ah, did you in fact
receive information that the correct location for this
incident was in Watervliet, New York?
A: Yes.
Q: Did you respond to that location and investigate
whether or not there is debris on the track? Whether
there is any youth in the area?
A: No, I didn't respond.
b. Plaintiff also stated as follows:
Q: Okay. Did you inform the PCC that the actual location
of occurrence was in Watervliet?
A: No. So much time had passed at that point. They gave
me the wrong information to begin with.
c. On June 9, 2016, Plaintiff's shift was from 4 p.m. to 2
a.m., and the incident was reported at 5:32 p.m. Plaintiff
testified that, later during that shift, he drove by the area
of the incident in Watervliet (approximately thirteen miles
from Mechanicsville) twice without going to the correct
location to investigate. In addition, Plaintiff testified that at
least several hours remained in his shift after he cleared the
scene in Mechanicsville.
d. At the hearing, Plaintiff further admitted to not disclosing
to District Inspector Szymaszek on June 10, 2016, during
their phone call that he had initially been dispatched to the
wrong location. Instead, Plaintiff stated as follows:
Q: Alright [sic]. And he mentioned deceit because you
didn't tell him where it was actually at. Why didn't
you tell him the incident, where the incident actually
occurred in Watervliet?
A: It was a short call and I was basically cut off.
e. When asked why Plaintiff did not go to the site at
any time or make a report of any form in connection
with Watervliet, he replied, “I didn't feel there was a need
because there was no criminal activity. There was, there
was, as I understood it, there was no track obstruction.
From the crew, they said that from their own statements
that there was [sic] kids around the tracks. And like I stated
earlier there's kids around the tracks in all cities on the
railroad.”
104. It is undisputed that Plaintiff did not go to the correct
location of the reported track incident in Watervliet. 63
CP's Post-Hearing Multi-Level Review Concluding that
Plaintiff Violated Multiple CPPS Policies Including
Neglect of Duty and Deceit, Warranting Dismissal
*19 105. Todd Law served as the hearing officer for the
hearing held on August 18, 2016, at 1 p.m.
106. Following the hearing, Law concluded that Plaintiff
was in violation of CPPS Policy 1.2.1 through .4 (Code
of Conduct: Inappropriate conduct, Insubordination, Neglect
of Duty, and Deceit), 3.4 (Incident Management), and 3.51
(Investigations). 64
107. Following a review of this conclusion, CP determined
that the record supported it. 65
108. Sergeant Seymour was not a decision-maker in the
decision to terminate Plaintiff's employment. 66
109. As set forth in the letter of September 9, 2016, CP made
the decision to terminate Plaintiff's employment with CPPS
effective immediately. 67
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Plaintiff's Claimed Protected Activity
110. In his Complaint, Plaintiff alleges that he took issue with
CP's on-call and scheduling decisions.
*20 111. Aside from alleging that he spoke with his
Union co-worker, REDACTION 3, who was also the Union
representative but who was not a CP manager, Plaintiff makes
only one allegation of a specific conversation he had with
a CP manager in paragraph 21 of his Complaint. Plaintiff
alleges that, “[o]n or about March 30, 2016, Plaintiff informed
his supervisor, Sgt. Seymour in Detroit, Michigan that he
had a safety complaint about the manner in which he was
being scheduled to work including the need to work excessive
overtime and being on call without a break, or time off.”
112. Plaintiff's unsworn “affidavit,” filed in support of his
opposition to CP's motion for summary decision before the
ALJ in this matter, described an alleged “Spring of 2016”
conversation in which he states that he and REDACTION 3
“had a conversation with Sgt. Seymour in Detroit, Michigan
about scheduling, overtime, and other union issues.” 68
113. Sergeant Seymour recalls no conversation during which
Plaintiff attributed his complaining about his scheduled on-
call hours to a hazardous safety concern.
114. In his OSHA complaint, Plaintiff identified two periods
in June and July of 2016 in which he allegedly was on-call for
extended periods of time. 69
115. In his OSHA complaint and objections to the OSHA
dismissal, the only specific dates that Plaintiff complains
about being on-call for an extended period relate to a “two-
three week[ ]” period in June/July 2016. This on-call rotation
Plaintiff describes from June/July 2016 was a deviation from
the normal course of business due to two other Special Agents
out of the Albany detachment being on leave during such
time. 70
116. Sergeant Seymour recalls that it would be “quite rare”
for a New York Special Agent to be called to do a job while
they were on call. 71
117. Sergeant Seymour recalled generalized complaints
in the NY detachment about Sergeant Seymour's remote
supervision (from Detroit) and the fact that the New York
agents felt they had to perform additional work as a result
(e.g., completing vehicle logs and faxing them to Sergeant
Seymour). 72
118. Notably, even these types of non-safety-related
complaints that Sergeant Seymour recalls, came from
a different New York Special Agent and not Plaintiff
himself. 73
*21 119. Plaintiff admits that, when they had issues as
a group, the detachment would discuss filing a grievance
“because [management is] not following certain procedures
and scheduling issues and stuff like that.” 74
120. Plaintiff has had at least five opportunities to set forth
what alleged complaints about safety he allegedly made to
CP management: 75 (1) he provided a statement at his CBA
disciplinary hearing; (2) he filed an OSHA complaint with a
written narrative; (3) when OSHA found no probable cause
for his allegations, he appealed the OSHA complaint with a
similar written narrative; 76 (4) during the course of discovery
related to his OSHA appeal, Plaintiff gave sworn testimony
through a deposition; and (5) in opposition to CP's motion for
summary decision before the ALJ, Plaintiff filed an unsworn
affidavit in support of his opposition memorandum.
121. Plaintiff testified that he never personally made a
complaint about a hazardous safety-related concern. In fact,
he testified to the contrary on the following occasions:
a. In his deposition, he testified as follows:
Q: When you say it's a safety concern, can you tell me,
specifically, you, yourself, when you personally, if
ever, told a C.P. manager that?
A: I told my union rep because they wanted us to follow
the chain of command, so.
b. He also testified as follows:
Q: ... you personally didn't directly speak to them about
the issue?
A: No.
Q: Do you know what, if anything, the topic of any other
union grievances were, aside from the–the scheduling
on-call issue?
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A: No. I–I–I'm not sure.
c. He also testified as follows:
Q: Well, do you remember talking about that grievance
you mentioned in early 2015 that your union–
A: I–you're going to have to speak–
Q: –that you–?
A: –you're going to have to speak with REDACTION 3
in reference to what was filed, when it was filed all
that kind of stuff.
Q: Okay. Well here's–here's my question. Other–other
than that grievance relating to the scheduling and
on-call, my question is it–other than that, are there
any other reports that you haven't raised or talked
about today, that you claim to have made that
you claim consist–or constitute a hazardous safety
railroad-security concern, that you brought to C.P.
management's attention?
A: The union did.
Q: It would only be the union?
A: They want–
Q: Not you?
A: –they–they wanted to use the chain of command, so
that's how we did it.
Q: Okay. So, in–to the extent any such reports exist,
they come through the union, is what you're saying
and your recollection is they are contained in this
grievance from early 2015?
*22 A: I–I don't know.
Q: Okay. You–you can't speak to any personal reports,
you individual[ly] and personally made to C.P.
management?
A: No.
d. He also testified that he never made any reports to
Human Resources during his employment with CP.
e. He also testified that he cannot speak to, recall, or
reference any “personal reports” that he, “individually and
personally made to CP management.”
f. He also responded, “No,” when asked specifically about
the alleged safety concerns about which he now claims as
protected activity and whether he ever personally spoke to
any CP manager directly.
g. Finally, he offered the following explanation for this
alleged “safety concern”: “[Dennis and Kevin] would
always have a different interpretation of the contract.” 77
122. Plaintiff produced an email he sent to Deputy Chief
Walker on May 18, 2016, following a meeting in Albany, New
York. The email, however, was about current practices on how
members record their daily and weekly activities and looking
for ways to “make it more efficient for the members and the
police service.” The email makes no reference to anything
“unsafe” or “hazardous.” Indeed, Plaintiff admitted during
his deposition that his email makes no “hazardous-condition
report[ ],” or claims “any kind of safety hazard.”
123. Despite the above sworn testimony and other evidence in
this case, Plaintiff now alleges in his Complaint that, in March
2016, he complained to Sergeant Seymour about his overtime
and on-call schedule, and that he told Sergeant Seymour this
was a “safety complaint.” 78
124. In his objections to OSHA's dismissal order, Plaintiff
stated, “Our union representative has told District Inspector
Szymaszek that they are running us ragged and it is against
labor laws to have us work so many days in a row without
complete days off.” 79
125. District Inspector Szymaszek does not believe he
received any complaints about the on-call procedures in
place between September 2015 and September 2016 in the
Albany detachment, and at no point in time did he become
aware that Plaintiff had complained that he was experiencing
health issues related to the hours of work and hours of
being on-call; and Sergeant Seymour does not recall receiving
any complaints regarding the on-call procedures in place
between September 2015 and September 2016 in the Albany
detachment, nor was he aware of any safety hazards between
September 2015 to July 2016. 80
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*23 126. Sergeant Seymour recalls speaking with the Union
representative, Mary Gunn, during which she communicated
that the agents had an issue with Sergeant Seymour's “remote
supervision” (from Detroit) and that the other detachments
with an on-site supervisor did not have to do some of
the things being asked of the New York agents, “such as
scanning their vehicle logs and sending them to [Sergeant
Seymour.]” 81
127. Sergeant Seymour testified that even this type of
complaint, as communicated from the union representative,
referred to the New York agents collectively or “some of the
guys” and nothing was specific to Plaintiff. 82
128. Similarly, Plaintiff testified that the New York
detachment supervisors were “trying to supervise from, you
know, a thousand miles away.”
129. Plaintiff further testified that he does not know Mary
Gunn.
130. Plaintiff offers no evidence of having engaged in FRSA
protected activity, except that he recalls that, sometime in
“early 2015,” he believes a grievance was filed; he offers
no details about the grievance, what was contained in
the grievance, or whether Defendant ever received such a
grievance. 83
131. CP's Labor Relations department has no record of any
union grievance or other communication from the union on
behalf of Plaintiff alleging claims or complaints relating to a
hazardous safety issue or concern. 84
132. In his OSHA complaint of June 21, 2016, Plaintiff
alleged that his protected activity refers to a Union grievance
filed on behalf of the collective group of New York Special
Agents, which was submitted by the Union in “early 2015.”
133. In his deposition, Plaintiff testified as follows:
Q: I'd like to know from you, what evidence you have,
or facts and circumstances you're going to rely on, to
claim that your termination was intentional retaliation
for this grievance you reference was made in early
2015.
A: Well, if you look at the form–the facts of the case,
I mean, this all started when Dennis and Kevin took
over, basically. We never had any issues with the
company before these two.
Q: Anything else?
A: Not that I can recall right now.
134. Plaintiff's Complaint in this action does not allege that
a formal Union safety grievance was filed in “early 2015.”
Instead, the Complaint alleges that “[s]tarting in March 2016
and continuing into June 2016, Mr. Niedziejko and his fellow
employees including but not limited to Michael Savokinas
made several complaints regarding the safety of the work
practice of having workers stay on call without days off and
limitation for extended periods of time.” Plaintiff's Complaint
also does not allege other previously asserted complaints
about dispatch, triplicate documentation, remote supervision,
and purported age discrimination. 85
135. Plaintiff alleges he was overworked with his on-call
schedule. Plaintiff's OSHA complaint identifies two specific
periods of time during which, he was “on call” for a
consecutive period (June 8, 2016, through June 26, 2016, and
July 6, 2016, through July 17, 2016). Plaintiff's Complaint
describes this same discrete period beginning June 2016. 86
*24 136. Notably, Plaintiff was off for one-week vacations
the week leading up to each of these on-call periods of time.
Specifically, he was on vacation from May 29, 2016, through
June 7, 2016, and again from June 26, 2016, through July 5,
2016. 87
137. Plaintiff admits that, during the approximately eighteen
months that preceded his termination, he worked the
midnight-shift as a part-time police officer for the Ballston
Spa Police Department on his days off from CP.
Plaintiff's Filing of an OSHA Complaint
138. Plaintiff filed an OSHA complaint on or about June 21,
2016.
139. Plaintiff's OSHA complaint sets forth the following
seven grievances: (1) being on call without days off; (2)
being on call but receiving no compensation (pay) for it,
and the Union representative being advised that “[u]nion
members do not receive compensation for on call during
days off”; (3) working so many days without complete days
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off as being “against our [U]nion contract”; (4) needing to
complete “triplicate documentation” as “only one example of
the discriminatory behavior towards [U]nion members;” (5)
noting that the Union “filed a grievance” over the frequent
scheduling of being on call; (6) noting a meeting held with
management about “scheduling, overtime and other union
issues”; and (7) classifying a hearing and purported discipline
as being “against the [U]nion contract” where they occur
beyond 15 days of an incident.
140. At the time Plaintiff filed his OSHA complaint,
Defendant had not issued any discipline to Plaintiff. 88
141. Rather, when Plaintiff filed his OSHA complaint,
Defendant had only issued contractually-required hearing
notices pursuant to the governing CBA for each of the
separate and unrelated incidents of potential rule violations,
the first regarding the alleged failure to maintain the shotgun
user log, and the second relating to Plaintiff's alleged
deceit and neglect of duty pertaining to his response and
investigation of a track obstruction and trespasser incident on
June 9, 2016. 89
142. Plaintiff testified that such hearing notices are
contractually required by the CBA when an employee is
charged with a disciplinary violation. 90
143. As each hearing notice advised, the hearings for the
separate alleged incident violations were scheduled to take
place on June 23, 2016 (shotgun allegations) and June 24,
2016 (neglect of duty and deceit allegations). 91
*25 144. However, pursuant to the Union's request–
and Defendant's grant of such request–the hearing was
postponed. 92
145. By email of September 13, 2016, OSHA advised CP that
Plaintiff wished to amend his OSHA complaint to address his
termination. 93
146. Nothing further was alleged or provided from OSHA in
terms of amendment; and Plaintiff never sought to amend his
OSHA complaint to challenge the reprimand issue following
the hearing on the shotgun user log violation. 94
147. Plaintiff admits that (1) he was not held out of service
for any period of time related to the shotgun user log incident,
(2) he lost no pay, (3) he lost no benefits, (4) his hours of
work were not affected, and (5) he continued working as a
Special Agent with no change to the terms and conditions of
his employment.
OSHA Investigates and Dismisses
Plaintiff's OSHA Complaint
148. OSHA conducted an independent investigation of
Plaintiff's OSHA complaint, detailing Plaintiff's allegations
that Defendant purportedly harassed him, improperly brought
him up on charges, then terminated his employment because
he (a) voiced a safety concern about the lack of Special
Agents, hours on call without compensation, and lack of rest,
(b) made complaints to Defendant about being dispatched to
calls numerous times by the communications center, and (c)
was being scrutinized by Defendant because of his age and
for being a Union member. 95
149. Following such investigatory review, OSHA dismissed
Plaintiff's OSHA complaint with findings and an amended
decision dated July 6, 2017. 96
150. Specifically, OSHA found that Plaintiff failed to
establish, inter alia, that he engaged in FRSA-protected
conduct or that CP's decision to terminate his employment
for the established rule violations committed in connection
with the trespass and obstruction incident on June 9-10, 2016,
was in retaliation for the alleged protected activity he claimed.
OSHA held that
*26 [Plaintiff] does not have
protected activity under the FRSA.
Even if it was determined that he had
FRSA protected activity with [CP's]
knowledge, evidence shows [CP]
issued [Plaintiff] the hearing notices,
sent him to a hearing then terminated
his employment, for legitimate, non-
retaliatory business reasons and not
in retaliation for his alleged protected
activity as claimed. Consequently, this
complaint is dismissed. 97
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Plaintiff Objects to OSHA's Decision to
Dismiss His OSHA Complaint and Proceeds
Before an Administrative Law Judge (“ALJ”)
151. Plaintiff thereafter appealed OSHA's findings and
decision by request dated August 1, 2017, to the ALJ. 98
152. A discovery period ensued, which included exchange
of initial disclosures by the parties, services and response to
discovery requests, and production of documents including
third-party records such as the past employment and medical
records of Plaintiff. Plaintiff took both depositions it
requested: (1) then-Sergeant Kevin Seymour, and (2) District
Inspector Dennis Szymaszek. Defendant took the deposition
of Plaintiff.
153. In his deposition, Plaintiff testified as follows, in
pertinent part: (1) his Union representatives “were the ones
advising Dennis and Kevin they couldn't be doing that, that
it was a violation of the contract”; (2) the Unionized police
department was a target for discrimination; (3) “Anyone who–
who made any kind of grievance, or you know, objected to
their way of doing things, which they weren't following the
contract, so we used our right as a union member, to file a
grievance because they didn't want to work with us on the
scheduling”; and (4) “So it was pretty–pretty obvious. We
were, you know, getting retaliated against because we wanted
to enforce our union contract.” 99
154. On March 7, 2018, Defendant filed a motion for
summary decision with the Office of Administrative Law
Judges, to which Plaintiff submitted an opposition response
and Defendant replied.
155. During a pre-trial telephone conference call, the
ALJ communicated that he was holding his decision on
Defendant's motion for summary decision in abeyance.
156. By separate Order dated April 27, 2018, the hearing was
continued upon “conferring with the parties and with their
consent” and re-scheduled to commence on June 13, 2018, in
Albany, New York.
157. However, on May 25, 2018, Plaintiff filed (through
counsel) a notice of intent to opt out to federal court. On June
5, 2018, the ALJ held a conference with the parties to discuss
Plaintiff's notice of intent “given the timing of the filing on
the eve of trial.”
*27 158. On June 8, 2018, Plaintiff's counsel served Defense
counsel with a copy of the Complaint he had filed in federal
court the day before.
159. On June 11, 2018, the ALJ issued an Order canceling
the hearing and dismissing the case with prejudice from
jurisdiction of the ALJ.
160. This matter has been litigated for more than two years,
since Plaintiff first filed his OSHA complaint in June 2016.
During that time period, Defendant prevailed at OSHA after
that department's review and investigation of Plaintiff's claim
and the record has been developed through litigation before
the ALJ.
C. Parties' Briefing on Defendant's Motion
1. Defendant's Memorandum of Law
Generally, in support of its motion to dismiss or, alternatively,
for summary judgment, Defendant asserts five arguments.
(See generally Dkt. No. 13 [Def.'s Mem. of Law].)
First, Defendant argues that the Court lacks subject-matter
jurisdiction over Plaintiff's Complaint because the Complaint
is precluded by the Railway Labor Act, 45 U.S.C. §§
151 et seq. (1994) (“RLA”), which requires that “minor
disputes” between rail carriers and their employees be
arbitrated, not litigated. (Id.) More specifically, Defendant
argues that disputes involving an employer's enforcement of
company policies, a supervisor's instructions, or the initiation
of disciplinary investigations under a collective bargaining
agreement (“CBA”) are all minor disputes precluded by the
RLA, and that the alleged protected activities that Plaintiff
engaged in are merely Plaintiff's grievances over terms of
the governing CBA. (Id.) Defendant argues that, for example,
Plaintiff's claims relate to work hours, work scheduling,
on-call schedule, overtime, staffing levels, pay claims, and
dismissal and hearing notices, all of which are governed by
the CBA and thus must be litigated pursuant to the RLA. (Id.)
Second, Defendant argues that Plaintiff's Complaint fails
to state a claim because it does not allege facts plausibly
suggesting that he engaged in FRSA-protected activity. (Id.)
More specifically, Defendant argues that OSHA exhaustively
reviewed Plaintiff's grievances, which were set forth in his
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OSHA complaint, and concluded that none of Plaintiff's
asserted activities were protected by the FRSA. (Id.)
Third, Defendant argues that, in the alternative, Plaintiff
cannot make a prima facie showing that (a) he engaged in
good-faith FRSA-protected activity before Defendant took
steps to investigate Plaintiff's alleged misconduct, (b) the
decision-maker(s) knew of that alleged protected activity, and
(c) that the alleged protected activity was a contributing factor
in the decision to dismiss him. (Id.) Regarding requirement
“(a),” Defendant argues that it took steps to investigate
Plaintiff's alleged misconduct before Plaintiff reported a
safety violation and that, in any event, Plaintiff did not either
subjectively or objectively believe the conduct he reported
presented an actual hazardous safety condition at the time
based on the undisputed facts (including, but not limited
to, Statement of Fact Numbers 8, 17, 106, 107, 136 and
137 above). (Id.) Regarding requirement “(b),” Defendant
argues that Plaintiff cannot establish that the decision-makers
involved in the post-hearing multi-level review process
relating to his dismissal (e.g., District Inspector Law, Deputy
Chief Walker, or Chief Marchant) were personally aware of
his alleged protected activity before they initiated a hearing
notice (and, indeed, Plaintiff cannot recall a single “personal
report” that he “individually and personally made to CP
management,” see, supra, Statement of Fact Number 121[c] ).
(Id.) Regarding requirement “(c),” Defendant argues that,
although the crux if Plaintiff's FRSA retaliation claim is
“discriminatory animus,” he cannot establish that Defendant's
dismissal decision was based on such discriminatory animus
given, among other things, (i) the fact that Plaintiff was
coached and counseled for deficient work performance before
he engaged in the alleged protected activity (see, supra,
Statement of Fact Numbers 60-72), (ii) the evidence that
Plaintiff's dismissal was based on his deceitful and neglectful
actions in connection with the track obstruction and trespasser
incident on June 9, 2016, (iii) the one-and-one-half-year
lapse between Plaintiff's alleged protected activity and his
dismissal, and (iv) the fact that Sergeant Seymour, with whom
Plaintiff alleges he had a conversation about overtime and
scheduling concerns in March 2016, was not a decision-maker
with regard to Plaintiff's dismissal (see, supra, Statement of
Fact Number 108). (Id.)
*28 Fourth, Defendant argues that, in the alternative, it
would have taken the same action regardless of Plaintiff's
alleged protected activity. (Id.) More specifically, Defendant
argues that the evidence from the CBA hearing established
Plaintiff's non-compliance and neglect of duty in connection
with his response and investigation of the track obstruction
and trespasser incident on June 9, 2016, which fully warranted
his dismissal regardless of any FRSA-protected activity in
which he may have engaged. (Id.)
Fifth, Defendant argues that, at a minimum, to the extent
Plaintiff's Complaint asserts a claim arising from the
reprimand he received for violation of the shotgun log policy,
that portion of the Complaint must be dismissed based on
(a) a failure to exhaust his administrative remedies regarding
that claim (due to his failure to previously challenge the
reprimand), (b) the untimeliness of that claim and (c) the fact
that the reprimand did not constitute an adverse action. (Id.)
2. Plaintiff's Opposition Memorandum of Law
Generally, in opposition to Defendant's motion, Plaintiff
asserts two arguments. (See generally Dkt. No. 23 [Plf.’s
Opp'n Mem. of Law].)
First, Plaintiff argues that the RLA does not preclude a FRSA
complaint. (Id.) More specifically, Plaintiff argues that the
2007 amendments to the FRSA make clear that its protection
against whistleblower discrimination exists in addition to
the collective bargaining remedies available to an employee
under the RLA. (Id.) In addition, Plaintiff argues that the
record contains evidence that he made safety complaints to
decision-making supervisors, including through (a) his March
2016 conversation with District Inspector Szymaszek, (b) his
separate March 2016 conversation with Sergeant Seymour
in Detroit during firearms training, and (c) his conversation
with Jim Thomas, in which Mr. Thomas informed him that
District Inspector Szymaszek had called the Superintendent
to inquire about the disciplinary process with the goal of
firing and writing up Plaintiff. (Id.) Plaintiff further argues
that District Inspector Szymaszek was a decision-making
supervisor with regard to Plaintiff's disciplinary hearing and
termination because (a) District Inspector Szymaszek sent an
e-mail to Inspector Kinloch outlining his investigation and
requesting a hearing, and (b) District Inspector Szymaszek
was copied on the letter that put Plaintiff on notice of his
disciplinary hearing. (Id.)
Second, Plaintiff argues that there is evidence in the record
establishing that he was reprimanded and terminated for
FRSA-protected activity, which included making safety
complaints about his work and on-call schedule. (Id.) More
specifically, Plaintiff argues that there is evidence that he (a)
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was an exceptional police officer, (b) made complaints to
the Superintendent of his police department directly and had
his union representatives make complaints for him regarding
safety concerns, and (c) was disciplined for those complaints.
(Id.) In addition, Plaintiff argues that the Court need not
accept Defendant's purportedly non-retaliatory motive for
dismissing him (i.e., dishonesty) because (a) the record
establishes that Defendant's allegation that Plaintiff was
deceitful is without merit, (b) the record establishes that
similar violations of the shotgun policy either did not result
in discipline or were handled in an informal manner, (c) the
temporal proximity between Plaintiff's safety complaints and
the discipline is circumstantial evidence of discrimination, (d)
the record establishes that Defendant withheld exculpatory
evidence from Plaintiff regarding the dispatcher's error
on June 9, 2016, (e) the record establishes that District
Inspector Szymaszek's testimony, which formed the sole
basis of Defendant's case at both of Plaintiff's disciplinary
hearings, is unreliable, and (f) Defendant's attempt to take
inconsequential work instructions and redefine them as
reprimands is overreaching in light of Plaintiff's fourteen-
year employment with Defendant during which he was not
disciplined until the shotgun policy incident. (Id.) 100
3. Defendant's Reply Memorandum of Law
*29 Generally, in its reply, Defendant asserts four
arguments. (Dkt. No. 26 [Def.'s Reply Mem. of Law].)
First, Defendant argues that Plaintiff misapprehends its RLA
preemption argument and thus his FRSA claims must be
dismissed. (Id.) More specifically, Defendant argues that
an essential element of Plaintiff's FRSA claims is showing
that he engaged in FRSA-protected activity, which Plaintiff
alleges he did in the form of making complaints about
on-call scheduling, staffing, and overtime. (Id.) However,
Defendant argues that one cannot determine if the manner
in which Defendant scheduled employees to work violated
the CBA (much less created a hazardous safety condition)
without interpreting or applying the negotiated CBA terms
and provisions that specifically address those issues; thus,
Plaintiff's claims are precluded by the RLA and must be
dismissed. (Id.)
Second, Defendant argues that, even if not dismissed on
RLA preemption grounds, Plaintiff's FRSA claims fail on the
merits because he cannot establish knowledge. (Id.) More
specifically, Defendant argues that “[i]n direct contravention
to his deposition testimony ... Plaintiff now claims that
he directly complained about scheduling matters to Dennis
Szymaszek ... and Kevin Seymour ... [b]ut even assuming
these new allegations are true for purposes of this motion,
Plaintiff's FRSA claim still fails because neither Szymaszek
nor Seymour were actual decision-makers in Plaintiff's
dismissal.” (Id.) Defendant argues that Plaintiff produced
no admissible evidence that Inspector Kinloch, District
Inspector Law, Deputy Chief Walker, and Chief Marchant
(the decision-makers involved in Plaintiff's dismissal) knew
about Plaintiff's purported safety complaints (see, e.g., supra,
Statement of Fact Number 125). (Id.)
Third, Defendant argues Plaintiff cannot establish a
contributory cause because to do so he must establish
a discriminatory animus, and here he cannot establish
discriminatory animus on the current record. (Id.) More
specifically, Defendant argues that Plaintiff cannot establish
discriminatory animus for the following reasons: (a) his
attempt to shorten the time gap between his purported safety
complaints and his termination fails to establish sufficient
temporal proximity to raise an inference of retaliatory
intent; (b) he has failed to present admissible evidence
that he personally engaged in FRSA-protected activity; (c)
he has failed to present admissible evidence that any of
his purported concerns were beyond CBA-contract-based
grievances, which are preempted by the RLA; and (d) he
has failed to present admissible evidence that the purported
CBA-grievances were in any way presented or described
to Defendant as a “hazardous safety condition.” (Id.) In
addition, Defendant argues that, in an attempt to establish
discriminatory animus, Plaintiff misstates the record in
the following ways: (a) contrary to what Plaintiff argues,
Sergeant Seymour is not similarly situated to Plaintiff
and his testimony that he was not “reprimanded” is not
inconsistent with District Inspector Szymaszek's testimony
that Szymaszek “had a discussion [with Seymour] and he
was [informally] counseled”; (b) contrary to what Plaintiff
argues, the record contains undisputed evidence that the audit
of the shotgun user logs was not manufactured or created
solely for retaliatory purposes and instead was also conducted
in 2013; and (c) Plaintiff's assertion that Defendant withheld
exculpatory evidence is a misstatement of fact because
the CBA hearing transcript reflects that District Inspector
Szymaszek directly spoke of the incorrect dispatch location
and there is no admissible evidence that Defendant's basis for
Plaintiff's dismissal has ever shifted. (Id.)
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*30 Fourth, Defendant argues that, at a minimum, Plaintiff's
admissions require dismissal of his reprimand claim. (Id.)
More specifically, Defendant argues that (a) in his opposition
memorandum of law, Plaintiff does not oppose Defendant's
challenge to this claim, and (b) indeed, he admits that he did
not amend his OSHA complaint to challenge the reprimand
and it is too late to do so now. (Id.)
II. GOVERNING LEGAL STANDARDS
A. Standard Governing Motion to Dismiss for Lack
of Subject-Matter Jurisdiction Under Fed. R. Civ. P.
12(b)(1)
“It is a fundamental precept that federal courts are courts
of limited jurisdiction.” Owen Equipment & Erection Co. v.
Kroger, 437 U.S. 365, 374 (1978). Generally, a claim may
be properly dismissed for lack of subject-matter jurisdiction
where a district court lacks constitutional or statutory power
to adjudicate it. Makarova v. U.S., 201 F.3d 110, 113 (2d
Cir. 2000). A district court may look to evidence outside of
the pleadings when resolving a motion to dismiss for lack
of subject-matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
Makarova, 201 F.3d at 113. The plaintiff bears the burden
of proving subject-matter jurisdiction by a preponderance
of the evidence. Makarova, 201 F.3d at 113 (citing Malik
v. Meissner, 82 F.3d 560, 562 [2d Cir. 1996] ). When a
court evaluates a motion to dismiss for lack of subject-matter
jurisdiction, all ambiguities must be resolved, and inferences
drawn, in favor of the plaintiff. Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing
Makarova, 201 F.3d at 113).
B. Standard Governing Motion to Dismiss for Failure
to State a Claim Under Fed. R. Civ. P. 12(b)(6)
It has long been understood that a dismissal for failure to state
a claim upon which relief can be granted, pursuant to Fed. R.
Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed.
R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability
of the claim. Jackson v. Onondaga Cnty., 549 F. Supp. 2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting
Report-Recommendation on de novo review).
Because such dismissals are often based on the first ground,
a few words regarding that ground are appropriate. Rule
8(a)(2) of the Federal Rules of Civil Procedure requires
that a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2) [emphasis added]. In the Court's view, this
tension between permitting a “short and plain statement” and
requiring that the statement “show[ ]” an entitlement to relief
is often at the heart of misunderstandings that occur regarding
the pleading standard established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized
the “short and plain” pleading standard under Fed. R. Civ. P.
8(a)(2) as “simplified” and “liberal.” Jackson, 549 F. Supp. 2d
at 212, n.20 (citing Supreme Court case). On the other hand,
the Supreme Court has held that, by requiring the above-
described “showing,” the pleading standard under Fed. R.
Civ. P. 8(a)(2) requires that the pleading contain a statement
that “give[s] the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests.” Jackson, 549 F.
Supp. 2d at 212, n.17 (citing Supreme Court cases) (emphasis
added). 101
*31 The Supreme Court has explained that such fair notice
has the important purpose of “enabl[ing] the adverse party
to answer and prepare for trial” and “facilitat[ing] a proper
decision on the merits” by the court. Jackson, 549 F. Supp.
2d at 212, n.18 (citing Supreme Court cases); Rusyniak v.
Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009)
(Suddaby, J.) (citing Second Circuit cases). For this reason,
as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore's Federal
Practice § 12.34[1][b] at 12-61 (3d ed. 2003). For example,
numerous Supreme Court and Second Circuit decisions exist
holding that a pleading has failed to meet the “liberal” notice
pleading standard. Rusyniak, 629 F. Supp. 2d at 213, n.22
(citing Supreme Court and Second Circuit cases); see also
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme
Court reversed an appellate decision holding that a complaint
had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In
doing so, the Court “retire[d]” the famous statement by the
Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a
complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle
him to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than
turn on the conceivability of an actionable claim, the Court
clarified, the “fair notice” standard turns on the plausibility
of an actionable claim. Id. at 1965-74. The Court explained
that, while this does not mean that a pleading need “set out
in detail the facts upon which [the claim is based],” it does
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mean that the pleading must contain at least “some factual
allegation[s].” Id. at 1965. More specifically, the “[f]actual
allegations must be enough to raise a right to relief above the
speculative level [to a plausible level],” assuming (of course)
that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court
explained that “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937,
1949 (2009). “[D]etermining whether a complaint states a
plausible claim for relief ... [is] a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.... [W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility
of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.
Ct. at 1950 [internal quotation marks and citations omitted].
However, while the plausibility standard “asks for more than
a sheer possibility that a defendant has acted unlawfully,” id.,
it “does not impose a probability requirement.” Twombly, 550
U.S. at 556.
Because of this requirement of factual allegations plausibly
suggesting an entitlement to relief, “the tenet that a court must
accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by merely
conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at
1949. Similarly, a pleading that only “tenders naked assertions
devoid of further factual enhancement” will not suffice. Iqbal,
129 S. Ct. at 1949 (internal citations and alterations omitted).
Rule 8 “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Id. (citations omitted).
*32 Finally, a few words are appropriate regarding what
documents are considered when a dismissal for failure to
state a claim is contemplated. Generally, when contemplating
a dismissal pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R.
Civ. P. 12(c), the following matters outside the four corners
of the complaint may be considered without triggering the
standard governing a motion for summary judgment: (1)
documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint
(and provided by the parties), (3) documents that, although
not incorporated by reference, are “integral” to the complaint,
or (4) any matter of which the court can take judicial notice
for the factual background of the case. 102
C. Standard Governing Motion for Summary
Judgment Under Fed. R. Civ. P. 56
Under Fed. R. Civ. P. 56, summary judgment is warranted if
“the movant shows that there is no genuine dispute as to any
material fact and that the movant is entitled to a judgment as
a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the [non-movant].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 103 As for
the materiality requirement, a dispute of fact is “material” if
it “might affect the outcome of the suit under the governing
law.... Factual disputes that are irrelevant or unnecessary will
not be counted.” Anderson, 477 U.S. at 248.
*33 In determining whether a genuine dispute of material
fact exists, the Court must resolve all ambiguities and draw
all reasonable inferences against the movant. Anderson, 477
U.S. at 255. In addition, “[the movant] bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of the ... [record]
which it believes demonstrate[s] the absence of any genuine
issue of material fact.” Celotex v. Catrett, 477 U.S. 317,
323-24 (1986). However, when the movant has met its initial
burden, the non-movant must come forward with specific
facts showing a genuine dispute of material fact for trial. Fed.
R. Civ. P. 56(a),(c),(e).
Implied in the above-stated burden-shifting standard is the
fact that, where a non-movant willfully fails to respond to a
motion for summary judgment, a district court has no duty
to perform an independent review of the record to find proof
of a factual dispute. Of course, when a non-movant willfully
fails to respond to a motion for summary judgment, “[t]he
fact that there has been no [such] response ... does not ... [by
itself] mean that the motion is to be granted automatically.”
Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather,
as indicated above, the Court must assure itself that, based
on the undisputed material facts, the law indeed warrants
judgment for the movant. Champion, 76 F.3d at 486; Allen v.
Comprehensive Analytical Group, Inc., 140 F. Supp. 2d 229,
232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3).
What the non-movant's failure to respond to the motion does
is lighten the movant's burden.
For these reasons, this Court has often enforced Local Rule
7.1(a)(3) by deeming facts set forth in a movant's statement
of material facts to be admitted, where (1) those facts are
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supported by evidence in the record, and (2) the non-movant
has willfully failed to properly respond to that statement. 104
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 of law under Local Rule 7.1(b)(3). 105 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 that the argument possess
facial merit, which has appropriately been characterized as
a “modest” burden. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a
properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate
entitlement to the relief requested therein....”); Rusyniak
v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1
(N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases);
Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2
& n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting
cases).
*34 Finally, the Court notes that the “principles governing
admissibility of evidence do not change on a motion for
summary judgment.” Raskin v. Wyatt Co., 125 F.3d 55,
66 (2d Cir. 1997). “[O]nly admissible evidence need be
considered by the trial court in ruling on a motion for
summary judgment,” and a “district court deciding a summary
judgment motion has broad discretion in choosing whether to
admit evidence.” Presbyterian Church of Sudan v. Talisman
Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009).
D. Standard Governing Plaintiff's Claims and
Defendant's Defenses
Because the parties have (in their memoranda of law)
demonstrated an accurate understanding of the legal standards
governing Plaintiff's claims and Defendant's defenses in this
action, the Court will not recite those legal standards in
their entirety in this Decision and Order, which is intended
primarily for the review of the parties. (See generally Dkt. No.
13 [Def.'s Mem. of Law]; Dkt. No. 23 [Plf.’s Opp'n Mem. of
Law]; Dkt. No. 26 [Def.'s Reply Mem. of Law].) Instead, the
Court will merely focus on certain portions of those standards
where necessary below in Part III of this Decision and Order.
III. ANALYSIS
For ease of analysis, the Court will first address Defendant's
motion to dismiss for lack of subject-matter jurisdiction
and then address each of Plaintiff's claims (first in light
of Defendant's failure-to-state-a-claim arguments against
them and then in light of Defendant's summary-judgment
arguments asserted against them).
A. Analysis of Defendant's Motion to Dismiss for Lack
of Subject-Matter Jurisdiction Under Fed. R. Civ. P.
12(b)(1)
After carefully considering the matter, the Court denies
Defendant's motion to dismiss for lack of subject-matter
jurisdiction for the reasons stated in Plaintiff's opposition
memorandum of law. (Dkt. No. 23 [Plf.’s Opp'n Mem.
of Law].) To those reasons, the Court adds the following
analysis.
The FRSA was enacted “to promote safety in every area
of railroad operations and reduce railroad-related accidents
and incidents.” 49 U.S.C. § 20101. In 1980, the FRSA was
expanded to include amendments that prohibited rail carriers
from retaliating against employees who engaged in protected
activity, such as reporting safety violations. Ray v. Union Pac.
R.R. Co., 971 F. Supp. 2d 869, 877 (S.D. Iowa 2013) (citing
Fed. Railroad Safety Authorization Act of 1980, Pub. L. No.
96-423, § 10, 94 Stat. 1811 [1980] ). “Following the 1980
amendments, employees who experienced such retaliation
could seek relief through the arbitration procedures set forth
in RLA § 3, 45 U.S.C. § 153.” Reed v. Norfolk S. Ry. Co., 12-
CV-0873, 2013 WL 1791694, at *3 (N.D. Ill. Apr. 26, 2013)
(citing Fed. Railroad Safety Authorization Act of 1980, Pub.
L. No. 96-423, § 10, § 212[c][1], 94 Stat. 1811, 1815 [1980].)
In 2007, Congress “eliminated the requirement that retaliation
claims be resolved under the RLA, and instead established an
administrative procedure under which retaliation complaints
are resolved by OSHA.” Welch v. Union R.R. Co., 16-
CV-0431, 2016 WL 4154760, at *2 (W.D. Mo. Aug. 4, 2016)
(citing 49 U.S.C. § 20109[d]; Lee v. Norfolk S. Ry. Co.,
802 F.3d 626, 630 [4th Cir. 2015] ). “The administrative
procedure commences with the filing of a complaint with the
DOL.” Welch, 2016 WL 4154760, at *2 (citing 49 U.S.C.
§ 20109[d][1] ). “[I]f the Secretary of Labor has not issued
a final decision within 210 days after the filing of the
complaint and the delay is not due to the bad faith of the
employee, the employee may bring an original action at law
or equity for de novo review in the appropriate district court
of the United States....” 49 U.S.C. § 20109(d)(3). The 2007
amendments also included the following addition: “Nothing
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in this section preempts or diminishes any other safeguards
against ... retaliation ... provided by Federal or State law.” 49
U.S.C. § 20109(g).
*35 “A ‘typical case’ of retaliatory discharge will not
‘depend[ ] upon the meaning of a collective-bargaining
agreement.’ ” Gilmore v. Union Pac. R.R. Co., 09-CV-2180,
2012 WL 3205233, at *4 (E.D. Cal. Aug. 2, 2012) (citing
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 405-06
[1988] ).
However, even after the 2007 amendments to the FRSA,
arbitration pursuant to the RLA remains the exclusive remedy
where interpretation of the CBA is required to resolve a
dispute. See Brisbois v. Soo Line R.R. Co., 124 F. Supp.
3d 891, at 897-98 (D. Minn. 2015) (dismissing four of
the plaintiff's claims because “[i]t would ... be impossible
for the Court to adjudicate [plaintiff's] claims without
interpreting provisions of the CBA–provisions that, according
to [plaintiff], entitled her to these reimbursement[s] and
positions and that, according to [defendant], created no such
entitlement” and maintaining four of the plaintiff's claims that
are independent of the CBA holding that “[t]o resolve these
retaliation claims, the Court will primarily address ‘purely
factual questions’ about [plaintiff's] conduct and [defendant's]
motivations”); Dunn v. BNSF Ry. Co., 17-CV-0333, 2017 WL
3670559, at *4 (W.D. Wash. Aug. 25, 2017) (ordering the
plaintiff to show cause why his alternative handling claim
should not be dismissed for lack of subject-matter jurisdiction
because it involved a “minor dispute” that required the Court
to ascertain whether he was entitled to alternative handling
in the first place pursuant to the CBA); cf. Powell v. Union
Pac. R.R. Co., 864 F. Supp. 2d 949, 959-60 (E.D. Cal.
2012) (holding that the plaintiff's FRSA wrongful termination
claim does not require interpretation of the CBA and thus
is not preempted by the RLA); Ray, 971 F. Supp. 2d at 880
(holding that the plaintiff's FRSA claims were not precluded
by the election of remedies provision in § 20109[f] where
the plaintiff also brought an enforcement action under the
RLA for rights that substantively arose under the CBA);
Reed, 2013 WL 1791694, at *4-5 (quoting 45 U.S.C. §
153[i] ) (holding that arbitration under the RLA “is not an
‘election’ of a remedy” because the arbitration provisions of
the RLA are mandatory and only authorize the arbitration
tribunal to hear disputes “arising ‘out of the interpretation or
application of [collective bargaining] agreements concerning
rates of pay, rules, or working conditions[.]’ ”); Ratledge
v. Norfolk S. Ry. Co., 12-CV-0402, 2013 WL 3872793, at
*12-17 (E.D. Tenn. July 25, 2013) (holding that the purpose of
the FRSA would be impeded by interpreting the election-of-
remedies provision to extend to the RLA where the plaintiff
sought relief from his dismissal pursuant to the provisions
of the RLA, because the “2007 amendments [to FRSA], ...
were intended to provide more protection to employees.... If
[defendant's] interpretation were adopted, employees would
face a choice between whistleblower protection and seeking
review of CBA rights. Forcing an employee into such a
choice will result in fewer § 20109 actions, and potentially
insulate rail carriers from administrative or judicial review of
retaliatory conduct.”).
*36 Here, the Court finds that it possesses subject-
jurisdiction over Plaintiff's Complaint because Plaintiff's
claims are independent of the CBA and thus not subject to
mandatory arbitration pursuant the RLA.
“To establish a prima facie claim of retaliation under the
FRSA, an employee must show by a preponderance of the
evidence that he (1) engaged in protected activity as defined
by the statute; (2) his employer knew that he had engaged in
protected activity; (3) he suffered an unfavorable personnel
action; and (4) the protected activity was a contributing factor
in the unfavorable action.” Lockhart v. Long Island R.R. Co.,
266 F. Supp. 3d 659, 663 (S.D.N.Y. 2017) (citing Bechtel
v. Admin. Review Bd., 710 F.3d 443, 447 [2d Cir. 2013];
Conrad v. CSX Transp., Inc., 824 F.3d 103, 107 [4th Cir.
2016]; Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d
152, 157 [3d Cir. 2013] ). If the plaintiff satisfies all of
these requirements, “then the burden shifts to the employer
to demonstrate by clear and convincing evidence that the
employer would have taken the same personnel action in the
absence of the protected activity.” Conrad, 824 F.3d at 107.
“Failure to satisfy any one of the prima facie requirements
is fatal to a claim.” Lockhart, 266 F. Supp. 3d at 663 (citing
Conrad 824 F.3d at 107).
The Court finds that the only element of the four elements
listed above that could involve the need to interpret the
terms of the CBA appears to be the element of whether
Plaintiff has engaged in protected activity; whether Defendant
was aware of protected activity, whether Plaintiff suffered
an unfavorable personnel action, and whether the protected
activity was a contributing factor in that action all appear to
be factual matters outside the scope of the CBA. As Plaintiff
alleges in his Complaint, 49 U.S.C. § 20109(b) indicates
that a railroad carrier “shall not discharge, demote, suspend,
reprimand, or in any other way discriminate against an
employee for (A) reporting, in good faith, a hazardous safety
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or security condition.” 49 U.S.C. § 20109(b). Therefore,
protected activity under this section would include the
reporting of safety concerns, as long as those reports were
made in good faith.
Plaintiff's alleged protected activity included complaints
about Defendant's “on-call and scheduling decisions” that
allegedly caused security officers to be over-worked and
without adequate rest or sleep, which decreased the security
officers' ability to perform their jobs effectively and thus
created an unsafe condition. See, supra, Part I.B. at ¶ 110 of
this Decision and Order. While Plaintiff asserted at various
times (i.e., in his OSHA complaint and during his deposition)
that Defendant's on-call, scheduling, and overtime decisions
were in violation of the CBA (see, e.g., Dkt. No. 18, Attach.
1, at 6-8), the Court is not required to determine the veracity
of those assertions to resolve Plaintiff's claim for retaliation.
More specifically, the Court need not determine whether
Defendant's on-call and scheduling practices were in violation
of the CBA to answer the question of whether Plaintiff
engaged in protected activity when he allegedly raised “safety
concerns” regarding Defendant's on-call and scheduling
practices. As a result, these questions are independent of one
another. See Crayton v. Long Island R.R., 05-CV-1721, 2006
WL 3833114, at *4 (E.D.N.Y. Dec. 29, 2006) (holding that,
where a claim “turns on the interpretation of a provision of
the CBA,” it “is substantially dependent upon an analysis
of the terms of a collective bargaining agreement” and thus,
precluded by the RLA).
*37 Even the determination of whether Plaintiff's reports
of safety concerns were made in good faith would not
require interpretation of the CBA because, apart from whether
Plaintiff has alleged that Defendant's on-call and other
policies violated the terms of the CBA, the relevant question
is whether Plaintiff had a good-faith belief that the actual
fact of being on-call for extended lengths of time without
days off created a hazardous safety or security condition. The
Court can assess Plaintiff's belief without having to interpret
the terms of the CBA. The fact that the CBA specifically
states that union members cannot be required to work in
unsafe conditions or otherwise proscribes certain on-call or
overtime practices of Defendant does not preclude a finding
of subject-matter jurisdiction because Plaintiff does not allege
that conditions were unsafe in that they violated the terms
set forth in the CBA; rather, Plaintiff alleges conditions
were unsafe because the “excessive overtime” and on-call
requirement caused fatigue that undermined his ability to
perform his job safely. (Dkt. No. 1, at ¶ 9.) Therefore, to
the extent that Plaintiff alleges safety concerns beyond mere
failure to comply with the standards that the CBA deems to be
“safe,” Plaintiff's retaliation claims are properly reviewable
under the FRSA.
For all of these reasons, the Court denies Defendant's motion
to dismiss for lack of subject-matter jurisdiction pursuant to
Fed. R. Civ. P. 12(b)(1). 106
B. Analysis of Plaintiff's Claim of Discriminatory
Reprimand
1. Failure-to-State-a-Claim Analysis
Under Fed. R. Civ. P. 12(b)(6)
After carefully considering the matter, the Court denies this
aspect of Defendant's motion to dismiss for failure to state a
claim for the reasons stated in Plaintiff's memorandum of law.
(Dkt. No. 23 [Plf.’s Opp'n Mem. of Law].) To those reasons,
the Court adds the following analysis.
Liberally construed (as all complaints must be under Fed. R.
Civ. P. 8[e] ), Plaintiff's Complaint plausibly alleges FRSA-
protected activity. More specifically, the Complaint alleges
that “[o]n or about March 30, 2016, Plaintiff informed his
supervisor, Sgt. Seymour in Detroit Michigan, that he had a
safety complaint about the manner in which he was being
scheduled to work, including the need to work excessive
overtime and being on call without a break, or time off.” (Dkt.
No. 1, at ¶ 21.) Drawing all reasonable inferences in Plaintiff's
favor, as the Court must do on a motion to dismiss for failure
to state a claim, the Court finds that the Complaint sufficiently
alleged that Plaintiff engaged in FRSA-protected activity.
2. Summary-Judgment Analysis Under Fed. R. Civ. P. 56
a. Whether Plaintiff Engaged in
Good-Faith FRSA-Protected Activity
After carefully considering the matter, the Court answers this
question in the negative for the reasons stated in Defendant's
memoranda of law. (Dkt. No. 13 [Def.'s Mem. of Law];
Dkt. No. 26 [Def.'s Reply Mem. of Law].) To those reasons,
the Court adds the following analysis, which is intended to
supplement but not supplant Defendant's reasons.
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As discussed above, the FRSA forbids a rail carrier from
retaliating against an employee who “report[s], in good
faith, a hazardous safety or security condition.” 49 U.S.C.
§ 20109(b)(1)(A). To establish that he engaged in protected
activity, a plaintiff must demonstrate that the information he
provided concerned conduct that he “reasonably believe[d]
constitute[d] a violation of any Federal law, rule, or regulation
relating to railroad safety or security, or gross fraud, waste,
or abuse of Federal grants or other public funds intended to
be used for railroad safety or security.” 49 U.S.C. § 20109(a)
(1). “A ‘reasonable belief contains both subjective and
objective components.’ ” Hernandez v. Metro-N. Commuter
R.R., 74 F. Supp. 3d 576, 580 (S.D.N.Y. 2015) (quoting
Nielson v. AECOM Tech. Corp., 762 F.3d 214, 221 [2d
Cir. 2014] ) (holding applicable to FRSA the Second
Circuit's reasonable belief standard that includes subjective
and objective components from whistleblower claims brought
pursuant to other statutes). “A plaintiff must ‘show not only
that he believed that the conduct constituted a violation,
but also that a reasonable person in his position would
have believed that the conduct constituted a violation.’ ”
Hernandez, 74 F. Supp. 3d at 580 (quoting Nielsen, 762 F.3d
at 221). Moreover, the information must be provided to “a
person with supervisory authority over the employee or such
other person who has the authority to investigate, discover, or
terminate the misconduct[.]” 49 U.S.C. § 20109(a)(1)(C).
*38 “Where, as here, the non-moving party has the burden
of proof on a specific issue, the moving party may satisfy its
summary judgment burden by ‘point[ing] to an absence of
evidence to support an essential element of the nonmoving
party's claim.’ To avoid summary judgment, the opposing
party ‘must [then] show the presence of a genuine issue by
coming forward with evidence that would be sufficient, if all
reasonable inferences were drawn in his favor, to establish the
existence of that element at trial.’ ” Young v. CSX Transp.,
Inc., 42 F. Supp. 3d 388, 394 (N.D.N.Y. 2014) (Hurd, J.)
(quoting Doona v. OneSource Holdings, Inc., 680 F. Supp. 2d
394, 399 [E.D.N.Y. 2010], and United States v. Rem, 38 F.3d
634, 643 [2d Cir. 1994] ).
The Court notes that much of the evidence before it is
inadmissible hearsay that cannot be considered on a motion
for summary judgment. For example, both parties submitted
“declarations” or “affidavits” that were not signed before a
notary public or sworn to pursuant to 28 U.S.C. § 1746.
In addition, Plaintiff's Complaint was not verified and his
response to Defendant's Interrogatories was signed only by
his attorney, who lacked first-hand knowledge of the answers
to the interrogatories.
Having said that, based on the admissible evidence before
it, the Court agrees with Defendant that Plaintiff is unable
to establish that he engaged in protected activity. In his
deposition, Plaintiff unequivocally testified that he did not
personally have any conversations with supervisors employed
by Defendant regarding safety concerns. 107 Instead, Plaintiff
testified that, beginning sometime in early 2015, the Union
filed a grievance (and possibly additional grievances) about
scheduling that may or may not have identified Plaintiff by
name. (Dkt. No. 18, Attach. 12, at 12.) 108
*39 In addition to Plaintiff's deposition testimony, the
parties submitted Plaintiff's OSHA complaint, which he
signed under penalty of perjury. (Dkt. No. 18, Attach. 1, at 8.)
Plaintiff testified at his deposition regarding the allegations
contained in his OSHA complaint. (See, e.g., Dkt. No. 18,
Attach. 12, at 59-60 [attaching pages “232” and “233” of
transcript].) Regarding his allegation in his OSHA complaint
that, “I as well as other union members have notified my
Sergeant and Commander numerous times about how it is
a safety hazard for lack of staffing of Special Agents that
we have, and being s [sic] frequently scheduled to be on
call” (Dkt. No. 18, Attach. 1, at 6), Plaintiff clarified that he
was, in fact, referring to the Union grievances that were filed
in early 2015. 109
The Court notes also that neither party has produced any
documentation of or testimony from Union representatives
regarding the Union grievance that was allegedly filed.
Plaintiff does not argue that raising safety concerns to the
Union constituted the good-faith protected activity on which
he is relying. (Dkt. No. 23.) See also Kuduk v. BNSF Ry.
Co., 980 F. Supp. 2d 1092, 1099 (D. Minn. 2013) (holding
that reporting safety concerns to a union representative is
not protected activity as defined in FRSA where there is
no evidence that the union representative was a supervisor
or had authority to investigate, discover or terminate the
misconduct), aff'd on other grounds, 786 F.3d 786 (8th Cir.
2014).
Instead, Plaintiff asserts that he did, in fact, discuss his
safety concerns directly with his supervisors. In support
of that argument, Plaintiff points to three separate portions
of his deposition testimony regarding conversations that he
had with (1) District Inspector Szymaszek, (2) Sergeant
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Kevin Seymour, and (3) Jim Thomas. 110 The Court notes
that Plaintiff's testimony concerning what Jim Thomas told
him is inadmissible hearsay and is not considered by the
Court in deciding Plaintiff's motion: what remains regarding
that conversation is insufficient to establish that Plaintiff
discussed his safety concerns directly with Jim Thomas.
Furthermore, Plaintiff's testimony about conversations with
District Inspector Szymaszek and Sergeant Seymour fail
to establish a genuine dispute of material fact for trial
regarding whether Plaintiff engaged in protected activity for
the following two reasons.
*40 First, Plaintiff's testimony does not reasonably suggest
that he raised any safety concern to District Inspector
Szymaszek or Sergeant Seymour. (Dkt. No. 18. Attach. 12,
at 13, 64.) Instead, the only reasonable interpretation of
Plaintiff's testimony regarding the conversation with District
Inspector Szymaszek is that, at some point in time and
to someone (perhaps not even in Plaintiff's presence) in
response to complaints about Defendant's scheduling and on-
call practices, District Inspector Szymaszek said something
to the effect of “sometimes you guys got to suck it up and
sometimes the company's got to feel the burn.” (Id. at 13.)
In addition, the only reasonable interpretation of Plaintiff's
testimony regarding the conversation with Sergeant Seymour
is that sometime between March 28 and March 31, 2016, in
Plaintiff and REDACTION 3's presence, Sergeant Seymour
said something to the effect of “calling the union on us is
not going to hurt me or Dennis. It is only going to hurt you
guys.” (Id. at 64.) 111 These statements by District Inspector
Szymaszek and Sergeant Seymour do not reasonably suggest
that any safety concerns specifically were raised by Plaintiff
or the Union. Instead, the statements appear to be in response
to CBA disputes between the Union and CP management
regarding scheduling. See Gibbs v. Norfolk S. Ry. Co., 14-
CV-0587, 2018 WL 1542141, at *5 (W.D. Ky. Mar. 29, 2018)
(holding that an e-mail that did not contain any concerns about
safety and instead described an inconvenience was not FRSA
protected activity).
Second, this incomplete testimony is insufficient to defeat a
summary judgment motion because Plaintiff also testified that
the only safety complaints he made were to the Union and
that he did not make any safety complaints to Defendant's
management. (Dkt. No. 18, Attach. 12, at 57-58.) See also
Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.
2005) (citation omitted) (“While it is undoubtedly the duty
of district courts not to weigh the credibility of the parties
at the summary judgment stage, in the rare circumstance
where the plaintiff relies almost exclusively on his own
testimony, much of which is contradictory and incomplete, it
will be impossible for a district court to determine whether
‘the jury could reasonably find for the plaintiff,’ and thus
whether there are any ‘genuine’ issues of material fact,
without making some assessment of the plaintiff's account.”).
Even drawing all inferences in the light most favorable to
Plaintiff, the Court finds that no reasonable person could
believe that Plaintiff engaged in good-faith protected activity
by (allegedly) making safety complaints to District Inspector
Szymaszek or Sergeant Seymour.
Moreover, the Court notes that Plaintiff did not dispute
Defendant's argument that his OSHA complaint did not
constitute good-faith protected activity. (Compare Dkt. No.
13, at 10-14 [attaching pages “8” through “12” of Def.'s
Memo. of Law] with Dkt. No. 23 [Plf.’s Opp'n Memo. of
Law].) As set forth above in Part II.C. of this Decision and
Order, in this District, when a non-movant fails to oppose
a legal argument asserted by a movant, the movant's burden
with regard to that argument is lightened, such that, in order
to succeed on that argument, the movant need only show that
the argument possesses facial merit, which has appropriately
been characterized as a “modest” burden. N.D.N.Y. L.R.
7.1(b)(3). 112 Here, Defendant has shown that its argument
that Plaintiff's OSHA complaint did not constitute protected
activity possesses facial merit for the reasons stated in its
motion papers.
*41 For all of these reasons, the Court grants Defendant's
motion for summary judgment with regard to Plaintiff's
discriminatory reprimand claim because Plaintiff failed to
establish a genuine dispute of material fact that he engaged in
protected activity under FRSA.
b. Whether any Decision-Maker(s)
Knew of the Protected Activity
In the alternative, after carefully considering the matter, the
Court answers this question in the negative for the reasons
stated in Defendant's memoranda of law. (Dkt. No. 13 [Def.'s
Mem. of Law]; Dkt. No. 26 [Def.'s Reply Mem. of Law].) To
those reasons, the Court adds the following analysis, which is
intended to supplement but not supplant Defendant's reasons.
“[A]t least one person involved in the adverse employment
decision must have knowledge of the protected activity, even
if it is an advisor or [member of] upper management.” Conrad
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v. CSX Transp., Inc., 13-CV-3730, 2014 WL 7184747, at
*4 (D. Md. Dec. 15, 2014). The plaintiff “need not prove
that the decision-maker responsible for the adverse action
knew of the protected activity if it can be established that
those advising the decision-maker knew, regardless of their
motives.” Rudolph v. Nat'l R.R. Passenger Corp., ARB Case
No. 11-037, 2013 WL 1385560, at *12 (Dep't of Labor Mar.
29, 2013).
In Conrad v. CSX Transp., Inc., a district court held that there
was not a genuine dispute of material fact as to the knowledge
element where the evidence established that the plaintiff
provided educational materials to other union members about
their rights, advocated for the rights of other union members,
and was generally a “thorn in the side” of the defendant's
management, but there was no evidence that the plaintiff's
supervisors knew that he had engaged in FRSA-protected
activity. Conrad, 2014 WL 7184747, at *4-5.
Plaintiff argues that, because District Inspector Szymaszek
(who was aware of the Union grievance) initiated a
disciplinary charge against him and testified at the
disciplinary proceeding, the decision to reprimand Plaintiff
was influenced by him, and thus Defendant should be found
to have such knowledge.
“Courts have accepted this so-called “cat's-paw” theory under
certain circumstances.” 113 Gibbs v. Norfolk S. Ry. Co., 14-
CV-0587, 2018 WL 1542141, at *6 (W.D. Ky. Mar. 29,
2018). Generally, these circumstances involve the supervisor
advising the decision-maker or being intimately involved in
the decision. See, e.g., Lowery v. CSX Transp., Inc., 690 F.
App'x 98, 100 (4th Cir. 2017) (accepting cat's-paw theory
where the supervisor “advised” all three decision-makers as
to whether the plaintiff had committed a rules violation);
Johnston v. BNSF Ry. Co., 15-CV-3685, 2017 WL 4685012,
at *8 (D. Minn. Oct. 16, 2017) (accepting cat's-paw theory
where the supervisors were “intimately involved” in the
adverse decision rather than “trivial participants”).
*42 Here, District Inspector Szymaszek testified at his
deposition that he was not involved in determining the
discipline that was imposed on Plaintiff, and that he does
not know who was involved in making that decision.
(Dkt. No. 18, Attach. 29, at 22, 27, 40 [attaching pages
“21,” “26” and “39” of transcript].) 114 Plaintiff has
not adduced admissible record evidence establishing that
District Inspector Szymaszek directed or advised that he be
reprimanded (or that District Inspector Szymaszek was even
the main instigator of the charges). Instead, District Inspector
Szymaszek merely submitted a written summary of his field
investigation of the incident of June 9-10, 2016, and provided
oral statements at the CBA disciplinary hearing. See, e.g.,
supra, Part I.B., ¶¶ 99-100 of this Decision and Order. This is
insufficient. See, e.g., Gunderson v. BNSF Ry. Co., 850 F.3d
962, 970 (8th Cir. 2017) (rejecting cat's-paw theory where the
supervisor merely informed his supervisor of the plaintiff's
alleged rules violation and arranged for witness interviews);
Kuduk v. BNSF Ry. Co., 768 F.3d 786, 790-91 (8th Cir.
2014) (rejecting cat's-paw theory where the supervisor merely
participated as a witness at the hearing that led to the plaintiff's
discharge and there was “no evidence [that the supervisor]
advised the decision-makers ... [or] influenced their discharge
decision”).
In addition, although Plaintiff does not argue that Sergeant
Seymour was a decision-maker with knowledge of his
FRSA-protected activity, the Court finds that Plaintiff has
not adduced admissible record evidence establishing that
Sergeant Seymour directed or advised that Plaintiff be
reprimanded. 115
*43 For all of these reasons, the Court grants Defendant's
motion for summary judgment with regard to Plaintiff's
discriminatory reprimand claim on the alternative basis that
Plaintiff has failed to establish a genuine dispute of material
fact that the decision-makers who issued the reprimand had
knowledge of his protected activity.
c. Whether the FRSA-Protected Activity Was a
Contributing Factor in Defendant's Reprimand Decision
In the alternative, after carefully considering the matter, the
Court answers this question in the negative for the reasons
stated in Defendant's memoranda of law. (Dkt. No. 13 [Def.'s
Mem. of Law]; Dkt. No. 26 [Def.'s Reply Mem. of Law].) To
those reasons, the Court adds the following analysis, which is
intended to supplement but not supplant Defendant's reasons.
A contributing factor is “any factor which, alone or in
connection with other factors, tends to affect in any way the
outcome of the decision.” Araujo v. New Jersey Transit Rail
Op., Inc., 708 F.3d 152, 158 (3d Cir. 2013) (quoting Marano
v. Dep't of Justice, 2 F.3d 1137, 1140 [Fed. Cir. 1993] ); Cyrus
v. Union Pac. R.R. Co., 12-CV-10248, 2015 WL 5675073, at
*11 (N.D. Ill. Sept. 24, 2015); Kuduk, 768 F.3d at 791 (quoting
Procedures for the Handling of Retaliation Complaints Under
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the Federal Railroad Safety Act, 75 Fed. Reg. 53522-01, 2010
WL 3392070, at *53524 [Aug. 31, 2010] ).
While the Second Circuit has not yet addressed this factor,
other courts in this Circuit and other circuits have. “Notably,
under the statute's ‘contributing factor’ causation standard,
a prima facie case does not generally require proof of the
employer's retaliatory motive.” Lockhart v. Long Island R.R.
Co., 266 F. Supp. 3d 659, 663 (S.D.N.Y. 2017), appeal filed
No. 17-2725 (2d Cir. Aug. 31, 2017) (citing Kuduk, 768
F.3d at 791, and Coppinger-Martin v. Solis, 627 F.3d 745,
750 [9th Cir. 2010] ). “But the contributing factor that an
employee must prove is intentional retaliation prompted by
the employee engaging in protected activity.” Kuduk, 768
F.3d at 791 (citing Consol. Rail Corp. v. U.S. Dep't of Labor,
567 F. App'x 334, 338-39 [6th Cir. 2014]; Ameristar Airways,
Inc. v. U.S. Dep't of Labor, 650 F.3d 562, 569-70 [5th Cir.
2011] ). “The essence of this intentional tort is ‘discriminatory
animus.’ ” Id. (citing Staub v. Proctor Hosp., 131 S. Ct. 1186,
1193 [2011] ).
A plaintiff can establish a prima facie case that his protected
activity was a contributing factor in the adverse action by
direct or circumstantial evidence. See Araujo, 708 F.3d at
161 (holding that direct evidence is not required to establish
this element). Circumstantial evidence that may indicate a
link between the protected activity and the allegedly adverse
actions include “[1] temporal proximity, [2] indications of
pretext, [3] inconsistent application of an employer's policies,
[4] an employer's shifting explanations for its actions, [5]
antagonism or hostility toward a complainant's protected
activity, [6] the falsity of an employer's explanation for the
adverse action taken, and a [7] change in the employer's
attitude toward the complaint after he or she engages in
protected activity.” Ray v. Union Pac. R.R. Co., 971 F. Supp.
2d 869, 885 (D. Iowa 2013).
Here, a thorough analysis of the relevant factors reveals that
Plaintiff has failed to create a genuine dispute of material
fact for trial that he was reprimanded because he engaged in
protected activity.
i. Temporal Proximity
*44 Plaintiff testified that the Union grievance was filed in
early 2015; however, the disciplinary charges were not filed
until June 17, 2016, and Plaintiff was not issued the reprimand
until September 9, 2016. (Dkt. No. 18, Attach. 12, at 12,
38-39; Dkt. No. 18, Attach. 19, at 2, 138.) The Court finds that
the approximately fifteen- to eighteen-month gap between
the alleged protected activity (early 2015) and the adverse
action is too attenuated to raise an inference of discriminatory
animus or retaliatory intent. See Doner-Hendrick v. New
York Inst. of Tech., 874 F. Supp. 2d 227, 242 (S.D.N.Y.
2012) (collecting cases) (“Courts in this Circuit have held
that periods ‘of two months or more defeat an inference of
causation.’ ”); Kuduk, 980 F. Supp. 2d at 1101 (“[A] plaintiff
cannot establish a prima facie case of retaliation based on
temporal proximity alone when the termination occurred two
months after the alleged protected conduct.”), aff'd 768 F.3d
786 (8th Cir. 2014) (“[W]e reject the notion ... that temporal
proximity, without more, is sufficient to establish a prima
facie case.”); Cyrus, 2015 WL 5675073, at *11 (holding
that “[g]iven the attenuated nature of the temporal gaps, no
reasonable jury could infer that [plaintiff] was placed on
a [developmental action plan] and terminated based on his
complaint” where there was a two- to five-month period
between the plaintiff's complaint and the developmental
action plan, and a five- to nine-month period between the
complaint and termination); King v. Indiana Harbor Belt
R.R., 15-CV-0245, 2018 WL 5982134, at *9 (N.D. Ind. Nov.
13, 2018) (“the Court agrees that temporal proximity alone
cannot create an inference of retaliatory animus here.”).
Similarly, Plaintiff asserts that his conversations with District
Inspector Szymaszek and Sergeant Seymour took place
in March 2016. (Dkt. No. 23, at 10.) Approximately
three months elapsed between these conversations and
when Plaintiff was charged with the shotgun log violation;
and approximately six months elapsed between these
conversations and when Plaintiff was actually reprimanded.
Again, this time gap is too attenuated to raise an inference of
discriminatory animus or retaliatory intent.
ii. Indications of Pretext
Plaintiff argues that the reprimand he received for violating
the shotgun log policy was a pretext for his safety complaints
about his work schedule. (Dkt. No. 23, at 22.) However,
Defendant presented evidence that the shotgun log policy
audit conducted in June 2016, was not the first shotgun log
policy audit. In fact, a shotgun log policy audit had been
conducted as recently as 2013. (Dkt. No. 17, Attach. 6.)
In addition, it is undisputed that the audit of June 2016
was conducted not only in the Albany detachment (where
Plaintiff was employed) but in all detachments in the United
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States and Canada. See, supra, Part I.B., ¶¶ 57-59 of this
Decision and Order. Even drawing all reasonable inferences
in Plaintiff's favor, a reasonable fact finder could not conclude
that Defendant conducted a periodic nationwide audit of
shotgun logs simply to target Plaintiff for his complaints.
iii. Inconsistent Application of Policies
Plaintiff argues that Defendant's disciplinary charges against
him were based on his safety report, but the other Special
Agents in the Albany Detachment were not charged with a
shotgun log policy violation despite also being members of
the Union, which allegedly filed a safety complaint on their
behalf, and also not filling out a shotgun log. (Dkt. No. 18,
Attach. 1, at 7; Dkt. No. 18, Attach. 28, at 31-32, 34.) See also
Pollock v. Union Pacific R.R. Co., 12-CV-2128, 2014 WL
3696116, at * 3 (S.D. Cal. July 23, 2014) (granting summary
judgment for the defendant where the plaintiff and another
employee [“Brooks”] were disciplined after plaintiff engaged
in protected activity but Brooks did not engage in protected
activity).
In addition, the Court finds that Sergeant Seymour, who was
required to (but did not) review the shotgun logs on a monthly
basis, but was not formally reprimanded for his violation of
the policy, is not similarly situated to Plaintiff. Gunderson v.
BNSF Ry. Co., 850 F.3d 962, 970 (8th Cir. 2017) (citing Bone
v. G4S Youth Servs., LLC, 686 F.3d 948, 957 [8th Cir. 2012] ).
During the relevant time period, Sergeant Seymour was a non-
union manager, whose terms and conditions of employment
were not governed by the same CBA as Plaintiff's. (Dkt. No.
17, at ¶¶ 4-5; Dkt. No. 18, Attach. 28, at 7-9.)
iv. Remaining Types of Circumstantial Evidence
*45 After carefully reviewing the record, the Court can
find no admissible evidence of any shifting explanations
for Defendant's actions, any antagonism or hostility toward
Plaintiff's protected activity, any falsity of Defendant's
explanation for the adverse action taken, and any change
in Defendant's attitude toward Plaintiff after he engaged in
protected activity.
For all of these reasons the Court grants Defendant's
motion for summary judgment with regard to Plaintiff's
discriminatory reprimand claim based on the alternative
finding that Plaintiff has failed to establish a genuine dispute
of material fact that his protected activity was a contributing
factor in Defendant's decision to reprimand him.
C. Analysis of Plaintiff's Claim of Discriminatory
Termination
1. Failure-to-State-a-Claim Analysis
Under Fed. R. Civ. P. 12(b)(6)
As set forth above in Part III.A.1 of this Decision and Order,
the Court finds that Plaintiff's Complaint sufficiently alleges
that he engaged in FRSA-protected activity. Therefore, the
Court denies this aspect of Defendant's motion to dismiss for
failure to state a claim.
2. Summary-Judgment Analysis Under Fed. R. Civ. P. 56
a. Whether Plaintiff Engaged in
Good-Faith FRSA-Protected Activity
After carefully considering the matter, the Court answers this
question in the negative for the reasons stated in Defendant's
memoranda of law. (Dkt. No. 13 [Def.'s Mem. of Law]; Dkt.
No. 26 [Def.'s Reply Mem. of Law].) To those reasons, the
Court adds one point, which is intended to supplement but
not supplant Defendant's reasons: as set forth above in Part
III.A.2.a. of this Decision and Order, the Court finds that
Plaintiff has failed to establish a genuine dispute of material
fact that he engaged in good-faith FRSA-protected activity.
Therefore, to the extent that Defendant moves for summary
judgment with regard to Plaintiff's discriminatory termination
claim, that motion is granted.
b. Whether any Decision-Maker(s)
Knew of the Protected Activity
In the alternative, after carefully considering the matter, the
Court answers this question in the negative for the reasons
stated in Defendant's memoranda of law. (Dkt. No. 13 [Def.'s
Mem. of Law]; Dkt. No. 26 [Def.'s Reply Mem. of Law].) To
those reasons, the Court adds one point, which is intended to
supplement but not supplant Defendant's reasons: as set forth
above in Part III.A.2.b. of this Decision and Order, the Court
finds that Plaintiff has failed to establish a genuine dispute of
material fact that the decision-makers in his termination had
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knowledge of, or were advised by individuals who knew of,
Plaintiff's FRSA-protected activity.
For all of these reasons, Defendant's motion for summary
judgment with regard to Plaintiff's discriminatory termination
claim is granted.
ACCORDINGLY, it is
ORDERED that Defendant's motion to dismiss or, in
the alternative, for summary judgment (Dkt. No. 13) is
GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 1) is
DISMISSED; and it is further
ORDERED that the Clerk of the Court shall close this action.
All Citations
Not Reported in Fed. Supp., 2019 WL 1386047
Footnotes
1 Defendant supports this factual assertion by citing an “declaration” that was neither signed before a notary
public nor sworn pursuant to 28 U.S.C. § 1746. (Dkt. No. 15, at ¶ 1.) As a result, the Court finds that this
declaration (Dkt. No. 18, Attach. 31 [Szymaszek Decl.] ) is inadmissible and will not be considered. However,
this fact is supported by other admissible evidence in the record that the Court has come across and will
not ignore. (Dkt. No. 18, Attach. 29, at 9.) In addition, Plaintiff has admitted this factual assertion. (Dkt. No.
24, at ¶ 1.)
2 Defendant supports this factual assertion by citing an exhibit attached to its attorney declaration which
includes excerpts from the policies and procedures manual of 2013. (Dkt. No. 15, at ¶ 2.) Defendant's counsel
does not purport to be the records keeper, and has not adduced a certification by that records keeper.
(See generally Dkt. No. 18.) However, Plaintiff has admitted this fact. (Dkt. No. 24, at ¶ 2.) Indeed, Plaintiff
has not contested the accuracy of this document and has testified that he recognizes the document and
acknowledges that the policy would have applied to him. (Dkt. No. 18, Attach. 12, at 32 [attaching page “121”
of transcript].) The Court notes that docket citations given in this Decision and Order are to the screen number
shown on the docket, not the page number listed on the document.
3 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶
9), the Court will deem this fact established because (1) it is partially supported by other admissible evidence
in the record (Dkt. No. 18, Attach. 28, at 11; Dkt. No. 18, Attach. 29, at 8-9), (2) Plaintiff has admitted the
fact (Dkt. No. 24, at ¶ 9), and (3) the fact is not highly material to this motion. See, supra, note 1 of this
Decision and Order.
4 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶
10), the Court will deem this fact established because (1) it is supported by other admissible evidence in the
record (Dkt. No. 18, Attach. 12, at 29; Dkt. No. 18, Attach. 29, at 9), and (2) Plaintiff has admitted the fact
(Dkt. No. 24, at ¶ 10). See, supra, note 1 of this Decision and Order.
5 Plaintiff responds that this factual assertion is “[a]dmitted in part” and “[d]enied in part.” (Dkt. No. 24, at ¶ 11.)
However, Plaintiff does not identify which part of the asserted fact is denied. (Id.) This is improper in a Rule 7.1
Response. See N.D.N.Y. L.R. 7.1(a)(3) (“The opposing party shall file a response to the Statement of Material
Facts. The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or
denying each of the movant's assertions in matching numbered paragraphs.”) (emphasis added); cf. Fed. R.
Civ. P. 56(e)(2) (“If a party ... fails to properly address another party's assertion of fact as required by Rule
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56(c), the court may ... consider the fact undisputed for purposes of the motion....”). Instead, Plaintiff asserts,
“[b]y way of further answer,” facts that attempt to either undermine Defendant's asserted fact or deny an
implication of that asserted fact, both of which are also improper in a Rule 7.1 Response. See Goldstick v. The
Hartford, Inc., 00-CV-8577, 2002 WL 1906029, at *1 (S.D.N.Y. Aug. 19, 2002) (striking plaintiff's Rule 56.1
Statement, in part, because plaintiff added “argumentative and often lengthy narrative in almost every case
the object of which is to ‘spin’ the impact of the admissions plaintiff has been compelled to make”); Yetman
v. Capital Dist. Transp. Auth., 12-CV-1670, 2015 WL 4508362, at *10 (N.D.N.Y. July 23, 2015) (Suddaby, J.)
(citing authority for the point of law that summary judgment procedure involves the disputation of asserted
facts not implied facts). To the extent that a non-movant desires to set forth any additional material facts
that he contends are in dispute, he is required by Local Rule 7.1(a)(3) to do so in separately numbered
paragraphs. Granted, Defendant supports this fact by citing an inadmissible “declaration.” (Dkt. No. 15, at ¶
11.) See also, supra, note 1 of this Decision and Order. However, this fact is supported by other admissible
evidence in the record. (Dkt. No. 18, Attach. 12, at 29.)
6 Although Defendant supports the second sentence of this asserted fact by citing an inadmissible
“declaration” (Dkt. No. 15, at ¶ 13), the Court will deem this fact established because (1) it is supported by
other admissible evidence in the record (Dkt. No. 18, Attach. 29, at 7-8), and (2) Plaintiff has admitted the
fact (Dkt. No. 24, at ¶ 13). See, supra, note 1 of this Decision and Order.
7 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at
¶ 14), the Court will deem this fact established because (1) the fact appears established elsewhere in the
record (see, e.g., Dkt. No. 18, Attach. 29, at 9), (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 14), and
(3) the fact is not highly material to this motion. See, supra, note 1 of this Decision and Order.
8 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶
15), the Court will deem this fact established because (1) the fact is consistent with the rest of the record
(see, e.g., Dkt. No. 18, Attach. 29, at 9), (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 15), and (3) the
fact is not highly material to this motion. See, supra, note 1 of this Decision and Order.
9 Because of the conflict between Plaintiff's cited record evidence (which establishes that his “territory” used to
be “much smaller”) and Defendant's cited record evidence (which establishes that “the amount of rail left to
patrol” decreased after the merger), the Court will deem the second sentence in Paragraph 17 of Defendant's
Rule 7.1 Statement as controverted. (Dkt. No. 15, at ¶ 17; Dkt. No. 24, at ¶ 17.) The Court notes that Plaintiff
has admitted the first sentence of Paragraph 17, which is established by the record.
10 While this asserted fact is not supported by the citation provided by Defendant (Dkt. No. 15, at ¶ 18), it is
supported elsewhere in the record (Dkt. No. 18, Attach. 28, at 5).
11 Defendant supports this factual assertion by citing an “declaration” that was neither signed before a notary
public nor sworn pursuant to 28 U.S.C. § 1746. (Dkt. No. 15, at ¶ 20.) As a result, the Court finds that this
declaration (Dkt. No. 18, Attach. 30 [Seymour Decl.] ) is inadmissible and will not be considered. However,
the Court will deem this fact established because (1) the fact appears consistent with the rest of the record
(see, e.g., Dkt. No. 18, Attach. 28, at 6-7), (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 20), and (3)
the fact is not highly material to this motion.
12 Although this asserted fact is not supported by the citation provided by Defendant (Dkt. No. 15, at ¶ 23), it is
supported elsewhere in the record (Dkt. No. 18, Attach. 28, at 33). In addition, Plaintiff's inability to admit or
deny this factual assertion does not constitute a denial. See F.D.I.C. v. Nat'l Union Fire Ins. Co. of Pittsburgh,
PA, 205 F.3d 66, 75 (2d Cir. 2000) (“[V]ague denials and memory lapses ... do not create genuine issues of
material fact.”); Davis v. City of Syracuse, 12-CV-0276, 2015 WL 1413362, at *2 (N.D.N.Y. Mar. 27, 2015)
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(“On a motion for summary judgment, denials of fact that are based on a lack of personal knowledge, mere
information or belief, and/or inadmissible evidence are insufficient to create a genuine dispute.”).
13 Defendant supports this fact by citing to an “declaration” that was neither signed before a notary public nor
sworn pursuant to 28 U.S.C. § 1746. (Dkt. No. 15, at ¶ 24.) See, also supra, note 1 of this Decision and Order.
However, the Court will deem this fact established because (1) it is supported elsewhere in the record (Dkt.
No. 18, Attach. 29, at 12), and (2) Plaintiff has admitted it (Dkt. No. 24, at ¶ 24).
14 Defendant supports this asserted fact by citing an exhibit attached to its attorney declaration. (Dkt. No. 15,
at ¶ 30.) Defendant's counsel does not purport to be Defendant's records keeper, and has not adduced
a certification by that records keeper. (See generally Dkt. No. 18.) However, the Court will deem this fact
established because (1) the fact appears consistent with the rest of the record (see, e.g., Dkt. No. 18, Attach.
12, at 39-40), (2) Plaintiff has admitted the fact (Dkt. No. 24, at ¶ 30), and (3) the fact does not appear highly
material to this motion.
15 Defendant supports this asserted fact by citing to an exhibit attached to its attorney declaration that included
the job description for the Special Agent position. (Dkt. No. 15, at ¶ 31.) Defendant's counsel does not purport
to be Defendant's records keeper, and has not adduced a certification by that records keeper. (See generally
Dkt. No. 18.) However, the Court will deem this fact established because (1) Plaintiff has admitted the fact
(Dkt. No. 24, at ¶ 31), (2) the fact appears consistent with the rest of the record, and (3) indeed, he testified
that the document relied upon by Defendant reflects an accurate description of the duties associated with his
Special Agent position (Dkt. No. 18, Attach. 12, at 35).
16 In support of the second sentence of this asserted fact, which includes the bulleted list, Defendant cites the
same exhibit as discussed above in note 15 of this Decision and Order. (Dkt. No. 15, at ¶ 32.) The Court will
deem this portion of the asserted fact established for the same reasons as stated in note 15.
17 Although this asserted fact is not supported by the citation provided by Defendant (Dkt. No. 15, at ¶ 33), it
is supported elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 12, at 34; Dkt. No. 18, Attach. 31, at ¶
7; Dkt. No. 18, Attach. 15, at 11, 23-31, 35-44; Dkt. No. 18, Attach. 17, at 2-4). In addition, Plaintiff partly
admits this fact. (Dkt. No. 24, at ¶ 33.) In partially denying this fact, Plaintiff states, “It is denied that the
Defendant and some [of] its employees used shot gun [sic] logs. Plaintiff was specifically told by his prior
Sargent [sic] that he did not have to fill out a shot-gun log in 2014.” (Dkt. No. 24, at ¶ 33.) However, the
above-stated fact (as modified by the record evidence) does not regard the practice of Defendant, or “some
of its employees,” regarding the shotgun logs. Nor does it regard what Plaintiff was told by his prior sergeant
in 2014. See Yetman, 2015 WL 4508362, at *10 (citing authority for the point of law that summary judgment
procedure involves the disputation of asserted facts not implied facts). As a result, the Court will deem the
above-stated fact uncontroverted.
18 The Court has modified the above-stated fact to accord with the cited record evidence, which establishes
that Plaintiff believed that communication “through our com-center” was not an important aspect of his job
as a Special Agent for C.P., because the com-center was “totally un–unreliable.” (Dkt. No. 24, at ¶ 35; Dkt.
No. 18, Attach. 2, at 34.)
19 Although Plaintiff denies this factual assertion in part, he does not specify the portion of the fact he is denying,
nor does he cite record evidence that actually controverts the record evidence cited by Defendant. (Dkt. No.
24, at ¶ 36.) According to Defendant's cited record evidence, Plaintiff testified as follows:
Q: The position of the special agent would be considered safety sensitive?
A: You would think, right? That's in–
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Q: Well, you're carrying a handgun, right?
A: Yeah, that's in contention right now. C.P. doesn't believe so.
Q: You had–you carried a handgun with you?
A: Yes.
(Dkt. No. 18, Attach. 12, at 34.) As a result, the Court will deem this fact uncontroverted.
20 The Court has modified the above-stated fact to accord with the cited record evidence. Although Plaintiff
disputes that he was indeed afforded a fair and impartial hearing (Dkt. No. 24, at ¶ 40), the fact stated above
does not regard what Plaintiff was actually afforded. As a result, the Court will deem the above-stated fact
uncontroverted.
21 Plaintiff denies this factual assertion on the ground that his numerous specific complaints were repeatedly
ignored. (Dkt. No. 24, at ¶ 46.) However, the factual assertion does not regard whether Plaintiff made
complaints or they were ignored. As a result, this factual assertion will be deemed uncontroverted.
22 Although Plaintiff denies this factual assertion in part, he does not specify the portion of the fact he is denying,
nor does he cite record evidence that actually controverts the record evidence cited by Defendant. (Dkt. No.
24, at ¶ 47.) According to Defendant's cited record evidence, Plaintiff testified as follows:
Q: And when there's a dispute or issue in connection with the terms that are under the C.B.A. you have
a procedure under the C.B.A. that–that governs how to either grieve it or resolve it. Is that fair to say?
A: Yes.
(Dkt. No. 18, Attach. 12, at 33.) Moreover, although Plaintiff cites exhibits to his Complaint, that pleading was
not verified and thus is not admissible evidence on a motion for summary judgment. (Dkt. No. 1.) As a result,
the Court deems this fact uncontroverted.
23 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at
¶ 49), the Court will deem this fact established because (1) the fact appears consistent with the rest of the
record (see, e.g., supra, Statements of Fact Nos. 31-32, 34), (2) Plaintiff has admitted the fact (Dkt. No. 24,
at ¶ 49), and (3) the fact is not highly material to this motion. See, supra, note 2 of this Decision and Order.
24 The Court has modified the above-stated fact to accord with the cited record evidence. (Dkt. No. 18, Attach.
15, at 35 [attaching page stamped “208”].) Although Defendant supports this factual assertion by citing
an inadmissible “declaration” (Dkt. No. 15, at ¶ 50), the Court will deem this fact both established and
uncontroverted because (1) the fact is supported elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 20,
at 18), and (2) Plaintiff has not effectively denied the above-stated fact (Dkt. No. 24, at ¶ 50). See, supra,
note 2 of this Decision and Order.
25 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at
¶ 51), the Court will deem this fact established because (1) the fact appears consistent with the rest of the
record (see, e.g., Dkt. No. 18, Attach. 20, at 10, 19, 39, 42, 67), and (2) Plaintiff has admitted the fact (Dkt.
No. 24, at ¶ 51). See, supra, note 2 of this Decision and Order.
26 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶
52), the Court will deem this fact both established and uncontroverted because (1) the fact appears consistent
with the rest of the record (see, e.g., Dkt. No. 18, Attach. 19, at 44-45, 62, 90-92, 115, 122, 123, 138), and
(2) Plaintiff has not effectively denied the fact (Dkt. No. 24, at ¶ 52). See, supra, note 2 of this Decision and
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Order. Plaintiff bases his denial on the assertion that he was informed by his sergeant that he did not have
to use a shotgun log. (Dkt. No. 24, at ¶ 53.) However, setting aside issues of lack of personal knowledge and
hearsay, the fact asserted does not regard what Plaintiff was or was not informed by his prior sergeant.
27 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at ¶
53), the Court will deem this fact both established and uncontroverted because (1) the fact appears consistent
with the rest of the record (see, e.g., Dkt. No. 18, Attach. 19, at 13-14), and (2) Plaintiff has not effectively
denied the fact (Dkt. No. 24, at ¶ 53). See, supra, notes 2 and 26 of this Decision and Order.
28 Although Defendant supports this factual assertion by citing an inadmissible “declaration” (Dkt. No. 15, at
¶ 54), the Court will deem this fact both established and uncontroverted because (1) the fact is supported
elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 28, at 38), and (2) Plaintiff has not effectively denied
the fact (Dkt. No. 24, at ¶ 54). See, supra, notes 1 of this Decision and Order. Plaintiff supports his denial
based on his assertion that he was informed by his sergeant that he did not have to use a shotgun log. (Dkt.
No. 24, at ¶ 54.) However, setting aside issues of lack of personal knowledge and hearsay, the fact asserted
does not regard what Plaintiff was or was not informed by his prior sergeant.
29 Although Plaintiff admits this factual assertion only “in part,” he does not specify what portion of the fact he is
denying, nor does he cite record evidence that actually controverts the record evidence cited by Defendant.
(Dkt. No. 24, at ¶ 57.) Plaintiff again asserts that he was informed by his sergeant that he did not have to
use a shotgun log. (Id.) However, setting aside issues of lack of personal knowledge and hearsay, the fact
asserted does not regard what Plaintiff was or was not informed by his prior sergeant.
30 The Court notes that Defendant supports this factual assertion citations to, inter alia, Sergeant Seymour's
supplemental declaration (Dkt. No. 17, Attach. 6.) (Dkt. No. 15, at ¶ 58; Dkt. No. 17, Attach. 6), which the Court
finds to be admissible (because it was sworn to pursuant to 28 U.S.C. § 1746), and which the Court finds
sufficiently authenticates the e-mail thread with Staff Sergeant Drader. See Bell v. Rochester Gas & Elec.
Corp., 329 F. App'x 304, 306 (2d Cir. 2009) (holding that the burden rests with the proponent of documentary
evidence and the proponent carries this burden by introducing “sufficient proof ... [allowing] a reasonable
juror [to] find in favor of authenticity”). The Court notes also that Plaintiff's denial is ineffective for the same
reason as set forth in note 29 of this Decision and Order.
31 Although Defendant supports this factual assertion by citing, inter alia, an inadmissible “declaration” (Dkt.
No. 15, at ¶ 59), the Court will deem this fact both established and uncontroverted because (1) the fact is
supported elsewhere in the record (including, but not limited to, the Supplemental Seymour Declaration and
exhibits thereto), and (2) Plaintiff has neither expressly denied the fact nor supported that denial with a citation
of admissible record evidence that actually controverts the fact asserted (Dkt. No. 24, at ¶ 52). See, supra,
notes 2, 12 and 30 of this Decision and Order.
32 Plaintiff responds that he has no recollection of the audit. (Dkt. No. 24, at ¶ 60.) This is insufficient to create
an issue of material fact for trial. See, supra, note 12 of this Decision and Order.
33 The Court has modified the above-stated fact to accord with the admissible record evidence cited by
Defendant. (Dkt. No. 18, Attach. 12, at 50.) The record evidence Plaintiff cites does not actually controvert
the above-stated fact. (Dkt. No. 24, at ¶ 62.) Moreover, his attempt to place the fact in a greater context is
in vain. See, supra, note 5 of this Decision and Order.
34 The Court has modified the above-stated fact to accord with the admissible record evidence cited by
Defendant. (Dkt. No. 18, Attach. 12, at 50-51.) The record evidence Plaintiff cites does not actually controvert
the above-stated fact. (Dkt. No. 24, at ¶ 63.) Moreover, his attempt to place the fact in a greater context is
in vain. See, supra, note 5 of this Decision and Order.
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35 The Court has modified the above-stated fact to accord with the admissible record evidence cited by
Defendant. (Dkt. No. 18, Attach. 12, at 51.) The record evidence Plaintiff cites does not actually controvert
the above-stated fact. (Dkt. No. 24, at ¶ 64.) Moreover, his attempt to place the fact in a greater context is
in vain. See, supra, note 5 of this Decision and Order.
36 Although Defendant supports this factual assertion by citing, inter alia, exhibits to an inadmissible “declaration”
by an apparent non-records keeper (Dkt. No. 15, at ¶ 66), the Court will deem this fact both established and
uncontroverted because (1) the fact is supported elsewhere in the record (Dkt. No. 18, Attach. 28, at 10-11),
and (2) Plaintiff has neither expressly and specifically denied the fact nor supported any such denial with
a citation of admissible record evidence that actually controverts the fact asserted (Dkt. No. 24, at ¶ 66).
See, supra, note 2 of this Decision and Order; see also Willis v. Cty. of Onondaga, 14-CV-1306, 2016 WL
7116126, at *5, n.10 (N.D.N.Y. Dec. 6, 2016) (Suddaby, C.J.) (“This partial denial is ineffective ... [because]
it fails to specify which part of the fact is denied as required by Local Rule 7.1[a][3].”).
37 Although Defendant supports this factual assertion by citing, inter alia, an exhibit to an inadmissible
“declaration” by an apparent non-records keeper (Dkt. No. 15, at ¶ 67), the Court will deem this fact both
established and uncontroverted because (1) the fact is supported elsewhere in the record (Dkt. No. 18, Attach.
28, at 14-15), (2) Plaintiff's attempt to deny a perceived implication of this factual assertion is in vain, and (3)
Plaintiff has supported his denial with a citation to admissible record evidence that actually controverts the
fact asserted (Dkt. No. 24, at ¶ 67). See, supra, notes 2 and 5 of this Decision and Order.
38 Although Defendant supports this factual assertion by citing an exhibit to an inadmissible “declaration” by
an apparent non-records keeper (Dkt. No. 15, at ¶ 68), the Court will deem this fact both established and
uncontroverted because (1) the fact is supported elsewhere in the record (Dkt. No. 18, Attach. 12, at 47),
(2) Plaintiff's attempt to deny a perceived implication of this factual assertion is in vain, and (3) Plaintiff has
supported his denial with a citation to admissible record evidence that actually controverts the fact asserted
(Dkt. No. 24, at ¶ 67). See, supra, notes 2 and 5 of this Decision and Order.
39 Although Defendant supports this factual assertion by citing an exhibit to an inadmissible “declaration” by
an apparent non-records keeper (Dkt. No. 15, at ¶ 69), the Court will deem this fact both established and
uncontroverted because (1) the fact is supported elsewhere in the record (Dkt. No. 18, Attach. 12, at 47-48),
(2) Plaintiff's attempt to deny a perceived implication of this factual assertion is in vain, and (3) Plaintiff has
supported his denial with a citation to admissible record evidence that actually controverts the fact asserted
(Dkt. No. 24, at ¶ 69). See, supra, notes 2 and 5 of this Decision and Order.
40 Although Defendant supports this factual assertion by citing an exhibit to an inadmissible “declaration” by
an apparent non-records keeper (Dkt. No. 15, at ¶ 71), the Court will deem this fact both established and
uncontroverted because (1) the fact is supported elsewhere in the record (Dkt. No. 18, Attach. 12, at 48),
(2) Plaintiff's attempt to deny a perceived implication of this factual assertion is in vain, and (3) Plaintiff has
not supported any such his denial with a citation to admissible record evidence (Dkt. No. 24, at ¶ 71). See,
supra, notes 2 and 5 of this Decision and Order.
41 The Court notes that, although the last sentence of the above-stated paragraph is not supported by Sergeant
Seymour's deposition transcript, it is supported by Plaintiff's deposition transcript. (Dkt. No. 18, Attach. 12,
at 44-45.)
42 See, supra, note 30 of this Decision and Order.
43 See, supra, note 30 of this Decision and Order.
44 The Court notes that, although Defendant cites only inadmissible declarations and exhibits thereto in support
of the above-stated fact, the fact is supported by other admissible evidence in the record. (See, e.g., Dkt.
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No. 18, Attach. 12, at 37; Dkt. No. 18, Attach. 19, at 11-12, 22-26.) The Court notes further that, although
the deposition introducing this document is inadmissible, the above-stated fact is supported elsewhere in the
record. (See, e.g., Dkt. No. 18, Attach. 12, ay 38-39.)
45 See, supra, note 44 of this Decision and Order.
46 Defendant supports this factual assertion by citing an “declaration” that was neither signed before a notary
public nor sworn pursuant to 28 U.S.C. § 1746. (Dkt. No. 15, at ¶ 80.) As a result, the Court finds that this
declaration (Dkt. No. 18, Attach. 32 [Kinloch Decl.] ) is inadmissible and will not be considered. However, this
fact is supported by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 28, at 51-52;
Dkt. No. 18, Attach. 29, at 26-27.)
47 Although Defendant cites “Tab I” (Dkt. No. 18, Attach. 9) as containing the document stamped 1508 (Dkt.
No. 15, at ¶ 82), in fact that document is contained at “Tab S” (Dkt. No. 18, Attach. 19, at 2). Furthermore,
although this document is introduced by declarations that are inadmissible, the above-stated fact is supported
by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 12, at 38-39.)
48 See, supra, note 47 of this Decision and Order.
49 See, supra, note 47 of this Decision and Order; see also Dkt. No. 18, Attach. 12, at 39, 54, 69.
50 The Court finds that Dkt. No. 18, Attach. 19, is admissible for the limited purposes of showing Plaintiff's
statements in his hearing, which are unchallenged by him on Defendant's motion. Moreover, the above-stated
facts are supported by other admissible evidence in the record. (Dkt. No. 18, Attach. 12, at 37-38; Dkt. No.
18, Attach. 19, at 11-12, 22-27; Dkt. No. 18, Attach. 28, at 32.) Finally, Plaintiff's denial is ineffective as non-
responsive to any fact expressly asserted (Dkt. No. 24, at ¶ 71). See, supra, note 5 of this Decision and Order.
51 Although Defendant's cited evidence is introduced by a declaration that is inadmissible, the above-stated fact
is supported by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 12, at 38-39.)
52 Although Defendant's cited evidence includes a declaration that is inadmissible, the above-stated fact is
supported by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 12, at 50-51; Dkt. No.
18, Attach. 20, at 22-30, 34-35; Dkt. No. 18, Attach. 29, at 29-31.) Moreover, Plaintiff's response that he is
unable to admit or deny the asserted fact is insufficient to create an issue of fact for trial. (Dkt. No. 24, at ¶
91.) See also, supra, note 12 of this Decision and Order.
53 See, supra, note 52 of this Decision and Order. The asserted fact is supported by other admissible evidence
in the record. (Dkt. No. 18, Attach. 29, at 31.)
54 See, supra, note 52 of this Decision and Order. The asserted fact is supported by other admissible evidence
in the record. (Dkt. No. 18, Attach. 20, at 22-30, 34-35; Dkt. No. 18, Attach. 29, at 31.)
55 See, supra, note 52 of this Decision and Order. The asserted fact is supported by the other citations provided
by Defendant. (Dkt. No. 18, Attach. 29, at 29-31.) Moreover, Plaintiff's attempt to controvert the factual
assertion by denying what he perceives to be an implication of the factual assertion is in vain. (Dkt. No. 24,
at ¶ 96.) See also, supra, note 5 of this Decision and Order.
56 See, supra, note 52 of this Decision and Order. The asserted fact is supported by admissible evidence in the
record. (Dkt. No. 18, Attach. 29, at 30-32, 34-35.)
57 See, supra, note 52 of this Decision and Order. The asserted fact is supported by other admissible evidence
in the record. (Dkt. No. 18, Attach. 29, at 31-32.)
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58 The Court finds this report admissible as a public record and/or for the effect on the listener (i.e., District
Inspector Szymaszek). (Dkt. No. 18, Attach. 20, at 52.) In any event, the factual assertion is established
elsewhere in the record. (See, e.g., Dkt. No. 18, Attach. 29, at 31-32.)
59 See, supra, note 52 of this Decision and Order. The asserted fact is supported by admissible evidence in
the record. (Dkt. No. 18, Attach. 12, at 54; Dkt. No. 18, Attach. 20, at 23-24; Dkt. No. 18, Attach. 29, at
31-37.) Moreover, Plaintiff's attempt to controvert the factual assertion by denying what he perceives to be an
implication of the factual assertion is in vain. (Dkt. No. 24, at ¶ 106.) See also, supra, note 5 of this Decision
and Order.
60 Although Defendant's cited evidence includes a declaration that is inadmissible, the above-stated fact is
supported by other admissible evidence in the record. (See, e.g., Dkt. No. 18, Attach. 29, at 28-29.) In support
of his denial of this factual assertion, Plaintiff cites generally to his 47-paragraph Statement of Additional
Facts in Dispute. (Dkt. No. 24, at ¶ 110.) This is improper. See also N.D.N.Y. L.R. 7.1(a)(3) (“Each fact listed
shall set forth a specific citation to the record where the fact is established.... Each denial shall set forth a
specific citation to the record where the factual issue arises.”); Rizzo v. Health Research, Inc., 12-CV-1397,
2016 WL 632546, at *2 (N.D.N.Y. Feb. 16, 2016) (Suddaby, C.J.) (“Of these 136 denials, 117 denials do not
contain a specific citation to the record. Therefore, the facts ‘denied’ by these paragraphs will be deemed
admitted.”); Benson v. Otis Elevator Co., 10-CV-3246, 2012 WL 4044619, at *1, n.1 (S.D.N.Y. Sept. 13,
2012) (deeming fact asserted by movant to be admitted by non-movant where non-movant supported denial
“only with non-specific citations to the entire testimony of several witnesses”); Janneh v. Regal Entm't, 07-
CV-0079, 2009 WL 2922830, at *1, n.3 (N.D.N.Y. Sept. 8, 2009) (McAvoy, J.) (“In response ... Janneh filed
a ‘Statement of Material Facts Not in Dispute.’ ... The document consists of ... a phrase at the end of the
document stating simply: ‘See Attached Exhibits.’ Janneh's statement fails to comply with the Local Rules
which Janneh has repeatedly been advised about....”); Univ. Calvary Church v. City of New York, 96-CV-4606,
2000 WL 1538019, at *2, n.6 (S.D.N.Y. Oct. 17, 2000) (“Despite the clear language of Rule 56 requiring
specificity, Plaintiffs rarely offers an exact cite in support of their version of the facts.... [A] vague cite to all of
the exhibits is simply unacceptable.”). The Court deems Plaintiff's response as an admission.
61 Although Defendant's cited evidence is inadmissible, the above-stated fact is supported by other admissible
evidence in the record. (See, e.g., Dkt. No. 18, Attach. 12, at 54.)
62 The Court finds that Dkt. No. 18, Attach. 20, is admissible for the limited purposes of showing the witnesses
statements in Plaintiff's hearing, which are unchallenged by him on Defendant's motion.
63 Although Plaintiff denies this factual assertion, he does not cite record evidence that actually controverts the
record evidence cited by Defendant. (Dkt. No. 24, at ¶ 116.)
64 Although Law's written summary of findings is not admissible in current form, the Court finds that it can be
presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). In any event, the Court finds
that the factual assertion is supported elsewhere in the copious record.
65 Although admissibility problems plague the evidence cited by Plaintiff (for reasons previously stated), the
Court finds that, at the very least, the above-stated fact is supported by those portions of that evidence which
can be presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). In any event, the Court
finds that the above-stated fact is supported elsewhere in the copious record.
66 The Court finds that the above-stated fact is supported in the record. (See, e.g., Dkt. No. 18, Attach. 28, at
11-12.) Plaintiff's response that he is unable to admit or deny the asserted fact is insufficient to create an
issue of fact for trial. (Dkt. No. 24, at ¶ 126.) See also, supra, note 12 of this Decision and Order. In addition,
Plaintiff does not provide a record citation supporting a denial.
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67 The Court finds that the above-stated fact is supported in the record. (See, e.g., Dkt. No. 18, Attach. 12, at
56.) Additionally, Plaintiff improperly denied this fact without providing any record citation. (Dkt. No. 24, at ¶
128.) See also Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact ... is genuinely disputed must support
the assertion by ... citing to particular parts of the record ... or ... showing that the materials cited do not
establish the absence ... of a genuine dispute, or that an adverse party cannot produce admissible evidence to
support the fact.”); N.D.N.Y. L.R. 7.1(a)(3) (“The non-movant's response shall mirror the movant's Statement
of Material Facts by admitting and/or denying each of the movant's assertions in matching numbered
paragraphs.”); N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding
grant of summary judgment where “[t]he district court, applying Rule 7.1[a][3] strictly, reasonably deemed
[movant's] statement of facts to be admitted” because the non-movant submitted a responsive Rule 7.1[a]
[3] statement that “offered mostly conclusory denials of [movant's] factual assertions and failed to include
any record citations”).
68 The Court notes that, although the parties characterize Plaintiff's affidavit as “sworn,” in fact it was neither
signed before a notary public nor sworn pursuant to 28 U.S.C. § 1746. (Dkt. No. 18, Attach. 36, at 2-4.)
69 Although admissibility problems plague the evidence cited by Plaintiff (for reasons previously stated), the
Court finds that, at the very least, the above-stated fact is supported by those portions of that evidence which
can be presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). In any event, the Court
finds that the above-stated fact is supported elsewhere in the copious record. Moreover, Plaintiff's denial is
ineffective because (1) neither of the two “declarations” he cites were signed before a notary public or sworn
to pursuant to 28 U.S.C. § 1746, and (2) he fails to cite any specific paragraph(s) in those declarations.
70 See, supra, note 69 of this Decision and Order. (See also Dkt. No. 18, Attach. 12, at 19.)
71 Plaintiff's denial is ineffective because (1) neither of the two “declarations” he cites were signed before a
notary public or sworn to pursuant to 28 U.S.C. § 1746, and (2) he fails to cite any specific paragraph(s) in
those declarations.
72 See, supra, note 71 of this Decision and Order.
73 Plaintiff neither admits nor denies this asserted fact. (Dkt. No. 24, at ¶ 137.) This is improper. See N.D.N.Y.
L.R. 7.1(a)(3) (“The non-movant's responses shall ... admit[ ] and/or deny[ ] each of the movant's assertions
in matching numbered paragraphs.”) (emphasis added); In re Horowitz, 2016 WL 1039581, at *1 n.2. In any
event, Plaintiff cites two declarations that are inadmissible. See, supra, note 71 of this Decision and Order.
74 Although Plaintiff denies this fact in part, he does not specify which part of the fact he is denying. (Dkt. No.
24, at ¶ 138.) This is improper. See, supra, note 5 of this Decision and Order. In any event, the portion of the
record that Plaintiff cites does not actually controvert the above-stated fact.
75 Plaintiff improperly denies this fact without setting forth any record citation. See, supra, note 67 of this Decision
and Order.
76 The Court notes that this asserted fact is not supported by the citation provided by Defendant. (Dkt. No.
15, at ¶ 139[c].) However, it is supported by Dkt. No. 18, Attach. 4, at 3-6 (which, although not currently in
admissible form, the Court finds can be presented in a form that would be admissible at trial).
77 Plaintiff's denial is ineffective because (1) neither of the two “declarations” he cites were signed before a
notary public or sworn to pursuant to 28 U.S.C. § 1746, and (2) he fails to cite any specific paragraph(s) in
those declarations.
78 See, supra, note 77 of this Decision and Order.
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79 See, supra, note 77 of this Decision and Order.
80 The Court has modified the above-stated facts to accord with the cited record evidence. (Dkt. No. 18, Attach.
28, at 20, 35; Dkt. No. 18, Attach. 29, at 14, 21-22.) Plaintiff's denial is ineffective for the reasons stated
above in note 77 of this Decision and Order.
81 See, supra, note 77 of this Decision and Order.
82 See, supra, note 77 of this Decision and Order.
83 See, supra, note 77 of this Decision and Order.
84 See, supra, note 77 of this Decision and Order. The Court notes that the Scudds Declaration is properly
certified pursuant to 28 U.S.C. § 1746. (Dkt. No. 18, Attach. 35, at 4.)
85 The above-stated fact is established by Plaintiff's Complaint in this action. (Dkt. No. 1.) Plaintiff improperly
denied the above-stated fact without providing any record citation for the dispute of fact. (Dkt. No. 24, at ¶
154.) See also, supra, note 67 of this Decision and Order.
86 See, supra, note 77 of this Decision and Order. The Court notes that the above-stated fact is established by
Plaintiff's Complaint in this action. (Dkt. No. 1.)
87 The Court notes that the above-stated fact is supported by the record. (See, e.g., Dkt. No. 17, Attach. 3.)
88 Plaintiff improperly denies this fact without setting forth any record citation. See, supra, note 67 of this Decision
and Order. Moreover, the factual assertion expressly regards discipline, not mere charges.
89 The Court notes that this asserted fact is supported by the record. (See, e.g., Dkt. No. 18, Attach. 19, at 2;
Dkt. No. 18, Attach. 20, at 39.)
90 The Court has modified the above-stated fact to accord with the cited record evidence. (Dkt. No. 18, Attach.
12, at 39; Dkt. No. 25, Attach. 7; Dkt. No. 25, Attach. 8.)
91 The Court finds that this factual assertion is supported by admissible record evidence. (Compare Dkt. No.
25, Attach. 7, and Dkt. No. 25, Attach. 8, with Dkt. No. 18, Attach. 19, at 2, and Dkt. No. 18, Attach. 20, at 39.)
92 Although Defendant's cited record evidence is not admissible in current form, the Court finds that it can be
presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). (Dkt. No. 18, Attach. 19, at 98;
Dkt. No. 18, Attach. 20, at 40.) In any event, the Court finds that the factual assertion is supported elsewhere
in the copious record.
93 Although Defendant's cited record evidence is not admissible in current form, the Court finds that it can be
presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). (Dkt. No. 18, Attach. 2, at 2-3.)
In any event, the Court finds that the factual assertion is supported elsewhere in the copious record.
94 See, supra, note 93 of this Decision and Order.
95 Although some of Defendant's cited record evidence is not admissible in current form, the Court finds that it
can be presented in a form that would be admissible at trial. Fed. R. Civ. P. 56(c)(2). (Dkt. No. 18, Attach. 1,
at 4.) In any event, the Court finds that the factual assertion is supported elsewhere in the copious record.
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96 The Court notes that, although this asserted fact is not supported by the citation provided by Defendant (Dkt.
No. 15, at ¶ 171), it is supported elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 3, at 8-12; Dkt. No.
18, Attach. 12, at 61).
97 The Court notes that, although this asserted fact is not supported by the citation provided by Defendant
(Dkt. No. 15, at ¶ 172), it is supported elsewhere in the record (see, e.g., Dkt. No. 18, Attach. 3). Moreover,
Plaintiff's denial of this asserted fact is ineffective because the asserted fact regard's OSHA's findings, not
Plaintiff's agreement or disagreement with them.
98 The Court finds that, although the record evidence cited by Defendant is not currently in admissible form (Dkt.
No. 18, Attach. 4), the Court finds that it can be presented in a form that would be admissible at trial.
99 In support of his denial of this factual assertion, Plaintiff improperly cited to his entire deposition testimony
rather than any specific location in the record. (Dkt. No. 24, at ¶ 175.) See also, supra, note 5 of this Decision
and Order.
100 Plaintiff's opposition memorandum of law does not address Defendant's fifth argument. (See generally Dkt.
No. 23.) Out of special solicitude to Plaintiff as a civil rights litigant, the Court will assume he has sufficiently
addressed Defendant's second argument, although (despite reciting the Rule 12[b][6] standard) Plaintiff
appears to rely on record evidence in all of his arguments. (Id.)
101 Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.); Hudson v. Artuz, 95-CV-4768,
1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.
1995) (McAvoy, C.J.).
102 See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit to a pleading is a part thereof
for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, 10-CV-573, 2011 WL 2135734, at *1 (2d Cir. June 1,
2011) (explaining that conversion from a motion to dismiss for failure to state a claim to a motion for summary
judgment is not necessary under Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1]
documents attached to the complaint or answer, [2] documents incorporated by reference in the complaint
(and provided by the parties), [3] documents that, although not incorporated by reference, are “integral” to the
complaint, or [4] any matter of which the court can take judicial notice for the factual background of the case);
DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (explaining that a district court considering
a dismissal pursuant to Fed. R. Civ. 12(b)(6) “may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the complaint....” Where
a document is not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint.... “However,
even if a document is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding
the authenticity or accuracy of the document. It must also be clear that there exist no material disputed issues
of fact regarding the relevance of the document.”) [internal quotation marks and citations omitted]; Chambers
v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2009) (“The complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”)
(internal quotation marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d
69, 72 (2d Cir. 1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or incorporate
by reference a [document] upon which it solely relies and which is integral to the complaint,” “the court may
nevertheless take the document into consideration in deciding [a] defendant's motion to dismiss, without
converting the proceeding to one for summary judgment.”) (internal quotation marks and citation omitted).
103 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue
of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]. As the Supreme Court has
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explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986).
104 Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to the movant's
Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching
numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue
arises. N.D.N.Y. L. R. 7.1(a)(3).
105 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999)
(McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants
in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for
defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3] ); Devito v.
Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.)
(deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a
concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
106 The Court notes that Plaintiff's opposition memorandum of law also asserts a new allegation that “[a]ny
evidence regarding any discriminatory basis of the disciplinary charge is strictly excluded from the transcribed
record by the hearing officer.” (Dkt. No. 23, at 8.) To the extent Plaintiff wishes to assert an allegation that
Defendant violated the CBA procedure during his disciplinary proceedings, his opposition memorandum of
law is an impermissible vehicle by which to assert new factual allegations. In any event, even if Plaintiff
had successfully amended his Complaint to add such an allegation, an interpretation of the CBA would be
required to resolve a claim based on that allegation; hence, the Court would lack subject-matter jurisdiction
over such a new claim.
107 Plaintiff provided the following testimony:
Q: When you say it's a safety concern, can you tell me, specifically you, yourself, when you personally,
if ever, told a C.P. manager that?
A: I told my union rep because they wanted us to follow the chain of command, so.
...
Q: So it would be fair to say that you never–you, Mr. Niedziejko, never personally spoke to one of the
C.P. managers directly?
A: I–I've spoken to them directly. They–they were under–yeah–
Q: About–about–about this issue, sorry. Not–not–I know you've talked–
A: Yeah.
Q: –with them, I'm sorry, I should be more specific–about this particular issue?
A: There–they were well aware of the issue.
Q: Right, but just answer my question, you personally didn't directly speak to them about the issue?
A: No.
(Dkt. No. 18, Attach. 12, at 14 [attaching pages “50” through “52” of transcript].)
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108 In addition, Plaintiff testified as follows:
Q: Okay. Well, here's–here's my question.
Other–other than that grievance relating to the schedule and on-call, my question is it–other than that,
are there any other reports you haven't raised or talked about today, that you claim to have made that
you claim consist–or constitute a hazardous safety railroad-security concern, that you brought to C.P.’s
management's attention?
A: The union did.
Q: It would only be the union?
A: They want–
Q: Not you?
A: –they–they wanted to use the chain of command, so that's how we did it.
Q: Okay. So, in–to the extent any such reports exist, they come through the union, is what you're saying
and your recollection is they are contained in this grievance from early 2015?
A: I–I don't know.
Q: Okay. You–you can't speak to any personal reports, you individual and personally made to C.P.
management?
A: No.
(Dkt. No. 18, Attach. 12, at 57-58 [attaching pages “224” and “225” of transcript].)
109 Specifically, Plaintiff testified as follows:
Q: And the next paragraph begins with being notified numerous times about a safety hazard, for lack
of staffing of special agents being frequently scheduled to be on-call, the incompetence of our call-
center, that dispatch has called numerous times.
Do you see that–the–that first full sentence? It runs about four lines?
A: Okay.
Q: Is that reference to the notification about this alleged safety hazard? Is that getting at the grievance
that you've been referring to, that you say you relied on the union to submit and work the chain of
command?
A: Yeah. I'm guessing so.
Q: Okay. Is there anything else alleged in this statement about any other types of alleged safety reports
that you claimed to have raised to C.P. management?
A: Whatever's in here.
Q: Okay. So, this is a complete and accurate statement from you, as to what, if any hazardous-condition
reports you claim to have made?
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A: Whatever's in that document there.
Q: Okay. But I just wanted to be clear on that first paragraph, that we're talking–that it's again, going back
to that union grievance, that you direct me to the union, to find more out about, that you can't speak
to, directly or personally. That's what I just want to make clear, that it is–there isn't something else.
A: Whatever's in the complaints.
(Dkt. No. 18, Attach. 12, at 59-60 [attaching pages “232” and “233” of transcript].)
110 Plaintiff testified regarding a conversation with District Inspector Szymaszek as follows:
Q: So can you explain to me more specifically how you believe they were violating the contract when
it came to scheduling?
A: Whatever the Union rep went with.
They would have us working, like, seventeen days straight with no days off, being on-call for all those
times, you know, we brought that to their attention, that it was a safety issue. And they said, you know–
Q: And–
A: –they–they always said, you know, sometimes–I'm like, we can't be on call, you know twenty-one
days straight or seventeen days straight and Dennis would say, well sometimes, you know, you guys
got to suck it up and, you know, sometimes the company's got to feel the burn. But the only people
that felt the burn were the guys being on-call, you know, seventeen days straight.
(Dkt. No. 18, Attach. 12, at 13 [attaching pages “45” and “46” of transcript].)
Plaintiff testified regarding a conversation with Sergeant Kevin Seymour as follows:
Q: Okay. Is that the only statement that you claim was made?
A: No. He's also made the statement–he's like I don't know what you guys think you're doing, calling the
union on us. It's not–it's not going to hurt me or Dennis. It's only going to hurt you guys. That sounds
like a threat to me and that was in Detroit, during firearms training. And REDACTED was–
Q: And–?
A: –and REDACTED was present, right there. Because we were complaining, once again, about the
scheduling. So, we called the union, the union called him. So–.
Q: And when exactly was the date that you're referring to, in Detroit, during firearms training?
A: Hang on. March 28th, through the 31st, we were in Detroit for firearms training.
(Dkt. No. 18, Attach. 12, at 64 [attaching pages “250” and “251” of transcript].)
Plaintiff testified regarding a conversation with Jim Thomas, a claims agent for Defendant as follows:
A: ... The claims' manager was listening in on a conversation over the speaker phone and Dennis called
up the superintendent to get the process of how you go about writing people up because we never
had anybody written up before. And then this claims' manager pulled me aside and said hey, Dennis
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is calling here. He's looking to fire you guys and write you guys up. I'm like, are you kidding me. I'm
like, over what? So, and that's–that was during the time the grievances were filed.
(Dkt. No. 18, Attach. 12, at 65 [attaching page “254” of transcript].)
111 Plaintiff's OSHA complaint also refers to his conversation with Sergeant Seymour stating:
REDACTION 3 and myself had a conversation with Sgt. Seymour on March 30, 2016, in Det [sic] Michigan
about scheduling, overtimes, and other union issues. He told us that he had spoken to REDACTION 4
about our concerns. He stated “it's only going to hurt you guys an [sic] not me or Dennis.”
(Dkt. No. 18, Attach. 1, at 7.)
112 Alternatively, the Court can, and does, deem the challenged claims abandoned (regardless of the facial
merit of the unresponded-to argument). See Jackson v. Fed. Exp., 776 F.3d 189, 197-98 (2d Cir. 2014)
(“Where a partial response to a motion is made-i.e. referencing some claims or defenses but not others-a
distinction between pro se and counseled responses is appropriate. In the case of a pro se, the district court
should examine every claim or defense with a view to determining whether summary judgment is legally and
factually appropriate. In contrast, in the case of a counseled party, a court may, when appropriate, infer from
a party's partial opposition that relevant claims or defenses that are not defended have been abandoned.
In all cases in which summary judgment is granted, the district court must provide an explanation sufficient
to allow appellate review. This explanation should, where appropriate, include a finding of abandonment of
undefended claims or defenses.”).
113 “The term ‘cat's paw’ derives from a fable conceived by Aesop.... In the fable, a monkey induces a cat by
flattery to extract roasting chestnuts from the fire. After the cat has done so, burning its paws in the process,
the monkey makes off with the chestnuts and leaves the cat with nothing.” Staub v. Proctor Hosp., 562 U.S.
411, 415 n.1 (2011). The term was injected into employment-discrimination law in 1990, see Shager v. Upjohn
Co., 913 F.2d 398, 405 (7th Cir. 1990), and into the FRSA context in 2014, see Consol. Rail Corp. v. U.S.
Dep't of Labor, 567 F. App'x 334, 338 (6th Cir. 2014).
114 For example, District Inspector Szymaszek testified as follows:
Q: In terms of the shotgun incident that led to charges against Mr. Niedziejko, were you involved in
determining the ultimate discipline that was assessed in that matter?
A: No.
Q: Who was?
...
A: I don't know who was involved in determining it. I know I was copied on a letter regarding the discipline
but I don't know who was involved in determining.
(Dkt. No. 18, Attach. 29, at 22 [attaching page “21” of transcript].)
Q: Did you consider an informal counseling for Mr. Niedziejko over that event?
A: I believe that was discussed with the Inspector of Personnel and Training.
Q: Did he ask you for your input on that?
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A: I believe he asked for information and I believe that a write-up was submitted.
Q: Okay. But did he ask you for your input as to whether [or] what the discipline should be?
A: No.
(Id. at 27 [attaching page “26” of transcript].)
Q: At any point did you advocate that Mr. Niedziejko should not be terminated from his position to any
persons?
A: I didn't have any conversations with anybody regarding what the discipline should be that I recall.
(Id. at 40 [attaching page “39” of transcript].)
115 Rather, Sergeant Seymour testified as follows:
Q: In terms of your time as a supervisor at Albany, ... how many times have you brought charges against
one of the people that worked under you in terms of they're not following the rules not, you know,
acting appropriately or for any reasons?
...
A: I never personally brought charges against anybody. I was involved in one hearing as a witness.
Q: So in terms of the disciplinary charges that were brought against Mr. Niedziejko you weren't involved
in raising any of those charges?
...
A: I was not involved in raising or bringing charges, no.
...
Q: Okay. The question is: Were you involved in raising any disciplinary charges under the Collective
Bargaining Agreement that led to Mr. Niedziejko's termination.
A: I was a witness in–not in the–no. I was witness in the one hearing involving shotgun logs.
Q: At any point from the time you became a supervisor up until the time Mr. Niedziejko was terminated
did anyone at C.P. Rail other than attorneys, ... did anyone ever ask you your opinion on whether Mr.
Niedziejko should be terminated or dismissed?
A: No.
Q: At any time from the time that Mr. Niedziejko was initially charged with any disciplinary violations over
the Collective Bargaining Agreement up until the time he was terminated, at any point did you request
that the termination be rescinded or that he be charged with something less than termination?
A: No.
(Dkt. No. 18, Attach. 28, at 11-13 [attaching pages “10” through “12” of transcript].)
Q: Okay. Now there was a hearing for the shotgun logs, are you familiar with that?
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A: Yes.
Q: Were you involved in that hearing at all?
A: I was a witness.
(Id. at 31 [attaching page “30” of transcript].)
Q: Do you know why Mr. Niedziejko was charged with a disciplinary infraction regarding the shotgun
logs?
A: I, I have a general knowledge but I wasn't part of that decision.
(Id. at 34-35 [attaching pages “33” and “34” of transcript].)
Q: Other than what's in the transcript hearing which I have and I've reviewed, did anyone that you're
aware of advocate that Mr. Niedziejko not be terminated from his position?
...
A: Not that I'm aware of.
(Id. at 45-46 [attaching pages “44” and “45” of transcript].)
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KeyCite Yellow Flag
Distinguished by Tackman v. Goord, W.D.N.Y., September 26, 2005
2003 WL 23101781
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Jose REYES, Plaintiff
v.
Superintendent MCGINNIS, Dept. of
Security Morse, Correctional Officer
Gridley, and Nurse Miller, Defendants.
No. 00–CV–6352–CJS
|
April 10, 2003.
Synopsis
Background: Pro se prisoner brought § 1983 action against
prison superintendent, deputy superintendent, corrections
officer, and prison nurse, alleging that he was forcibly
removed from his cell, handcuffed too tightly, punched and
threated by officer, that nurse ignored prisoner's injuries,
and that superintendent and deputy were aware that officer
had injured other prisoners. Defendants moved for summary
judgment.
Holdings: The District Court, Siragusa, J., held that:
[1] neither prison superintendent nor deputy superintendent
were deliberately indifferent to danger of assault by officer;
[2] genuine issues of material fact precluded summary
judgment in favor of officer and nurse; and
[3] state law tort claims against prison officials and
corrections officer were required to be dismissed.
Motion granted in part, and denied in part.
West Headnotes (4)
[1] Civil Rights Criminal law enforcement;
prisons
Neither prison superintendent nor deputy
superintendent were deliberately indifferent to
danger of assault by corrections officer against
prisoner, and thus could not be liable in prisoner's
§ 1983 supervisory liability action, arising out of
alleged actions of officer, in forcibly removing
prisoner from cell, handcuffing him to tightly,
punching and threatening him; superintendent
and deputy lacked direct personal knowledge
about the incident or about alleged prior
incidents of violence involving officer. 42
U.S.C.A. § 1983.
[2] Civil Rights Criminal law enforcement;
prisons
Summary Judgment Prisons and jails
Genuine issue of material fact as to whether
prison staff prevented prisoner from exhausting
his administrative remedies with respect to
claim arising from alleged assault by corrections
officer and nurse's alleged failure to treat his
injuries, precluded summary judgment in favor
of officer and nurse, in prisoner's § 1983
action. 42 U.S.C.A. § 1983; Civil Rights of
Institutionalized Persons Act, § 7, 42 U.S.C.A. §
1997e(a).
1 Case that cites this headnote
[3] Civil Rights Criminal law enforcement;
prisons
Summary Judgment Prisons and jails
Genuine issue of material fact as to whether
corrections officer's alleged improper use of
handcuffs on prisoner's wrist was proximate
cause of ganglion cyst that prisoner developed,
precluded summary judgment in favor of officer,
in prisoner's § 1983 excessive force action. 42
U.S.C.A. § 1983.
2 Cases that cite this headnote
[4] Prisons Liabilities
Public Employment Law enforcement
personnel
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Prisoner's in forma pauperis state law tort claims
against prison officials and corrections officer, in
their individual capacities, arising out of officer's
alleged assault against prisoner, were required to
be dismissed. 28 U.S.C.A. § 1915(e)(2)(B).
Attorneys and Law Firms
Jose Reyes, Brooklyn, New York, for plaintiff, pro se.
Kelly McCarthy, Assistant Attorney General, Office of the
New York State, Attorney General, Rochester, New York, for
defendants.
DECISION AND ORDER
SIRAGUSA, J.
INTRODUCTION
*1 This is an action in which the pro se plaintiff, a
former prison inmate, is suing various employees of the New
York State Department of Correctional Services (“DOCS”),
pursuant to 42 U.S.C. § 1983. The complaint also asserts
state-law causes of action for assault, battery, and negligence.
Now before the Court is plaintiff's motion for summary
judgment [# 40]. For the reasons that follow, the application
is granted in part and denied in part.
BACKGROUND
On July 28, 1998, at Southport Correctional Facility, plaintiff
was forcibly removed from his cell by corrections officers,
after he allegedly refused to uncover his cell door. Once
plaintiff was removed, defendant Corrections Officer Dana
Gridley (“Gridley”) handcuffed plaintiff. Plaintiff contends
that Gridley intentionally applied the handcuffs too tightly,
causing plaintiff extreme pain. Plaintiff alleges that Gridley
then repeatedly punched and threatened to kill him, and
lifted him from the floor by his handcuffs, again causing
extreme pain. According to plaintiff, Gridley's misuse of the
handcuffs caused him to suffer nerve damage in his wrists.
Plaintiff also contends that Gridley's alleged improper use of
handcuffs caused him to develop a ganglion cyst, which he
had surgically removed from his wrist in January 2001. The
Complaint asserts a cause of action pursuant to 42 U.S.C.
§ 1983, as well as state-law claims for assault and battery,
against Gridley.
After plaintiff was forcibly removed from his cell on
July 28, 1998, corrections officers had him examined by
defendant Nurse Steven Miller (“Miller”), who made notes
in plaintiff's ambulatory health record regarding his various
injuries. Plaintiff alleges, however, that Miller ignored
and failed to record the fact that plaintiff's hands were
extremely swollen and bleeding. The Complaint asserts 8 th
Amendment deliberate indifference and state-law negligence
claims against Miller.
Neither defendant Michael McGinnis (“McGinnis”),
Superintendent of Southport, nor defendant Richard Morse
(“Morse”), Deputy Superintendent for Security at Southport,
were present when plaintiff was extracted from his cell or
when he was examined by Miller. Nonetheless, plaintiff
contends that both are liable for the alleged constitutional
violations by Gridley. Plaintiff contends that both McGinnis
and Morse were aware, prior to the July 28 th incident, that
Gridley had injured other inmates by applying their handcuffs
too tightly, but had failed to take action against him. The
Complaint asserts Section 1983 supervisory liability claims
against McGinnis and Morse in connection with the alleged
assault by Gridley, as well as claims for assault and battery. 1
The parties have now completed pre-trial discovery, and
defendants are moving for summary judgment on three
separate grounds. Defendants first allege that the entire action
must be dismissed, because plaintiff failed to exhaust his
administrative remedies, as required by 42 U.S.C. § 1997e(a).
McGinnis and Morse also contend that they are entitled to
judgment, because they were not personally involved in the
alleged constitutional violations. Finally, defendants contend
that plaintiff's claims seeking damages for the ganglion cyst
on his wrist must be dismissed, since there is no proof that
Gridley's alleged misuse of handcuffs caused the ganglion
cyst. Plaintiff has filed a response, disputing all of defendants'
contentions. The Court has thoroughly considered the parties'
submissions and the entire record in this action.
ANALYSIS
*2 The standard for granting summary judgment is well
established. Summary judgment may not be granted unless
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“the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.” Fed.R.Civ.P. 56(c). A party seeking summary judgment
bears the burden of establishing that no genuine issue of
material fact exists. See, Adickes v. S.H. Kress & Co., 398
U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). “[T]he
movant must make a prima facie showing that the standard
for obtaining summary judgment has been satisfied.” 11
MOORE'S FEDERAL PRACTICE, § 56.11[1][a] (Matthew
Bender 3d ed.). “In moving for summary judgment against a
party who will bear the ultimate burden of proof at trial, the
movant may satisfy this burden by pointing to an absence of
evidence to support an essential element of the nonmoving
party's claim.” Gummo v. Village of Depew, 75 F.3d 98, 107
(2d Cir.1996)(citing Celotex Corp. v. Catrett, 477 U.S. 317,
322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)), cert denied,
517 U.S. 1190 (1996).
The burden then shifts to the non-moving party to
demonstrate “specific facts showing that there is a genuine
issue for trial.” Fed.R.Civ.P. 56(e); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). To do this, the non-moving party must present
evidence sufficient to support a jury verdict in its favor.
Anderson, 477 U.S. at 249. Summary judgment is appropriate
only where, “after drawing all reasonable inferences in favor
of the party against whom summary judgment is sought,
no reasonable trier of fact could find in favor of the non-
moving party.” Leon v. Murphy, 988 F.2d 303, 308 (2d
Cir.1993). The parties may only carry their respective burdens
by producing evidentiary proof in admissible form. FED. R.
CIV. P. 56(e). The underlying facts contained in affidavits,
attached exhibits, and depositions, must be viewed in the light
most favorable to the non-moving party. U.S. v.. Diebold, Inc.,
369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
A court should read a pro se litigant's papers liberally,
interpreting them “to raise the strongest arguments that they
suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994).
However, when alleging a violation of a civil rights statute,
even a pro se litigant must make “specific allegations of fact
indicating a deprivation of rights, instead of a litany of general
conclusions that shock but have no meaning.” Barr v. Abrams,
810 F.2d 358, 363 (2d Cir.1987).
To pursue an action under 42 U.S.C. § 1983, a plaintiff must
allege (1) that the challenged conduct was attributable at least
in part to a person acting under color of state law, and (2)
that such conduct deprived the plaintiff of a right, privilege,
or immunity secured by the Constitution or laws of the United
States. Dwares v.. City of New York, 985 F.2d 94, 98 (2d
Cir.1993). To be liable for money damages under 42 U.S.C.
§ 1983, a defendant must have been personally involved
in the alleged constitutional deprivation. Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir.1995). Personal involvement by a
supervisory official may be shown by evidence that:
*3 (1) the defendant participated
directly in the alleged constitutional
violation, (2) the defendant, after being
informed of the violation through a
report or appeal, failed to remedy
the wrong, (3) the defendant created
a policy or custom under which
unconstitutional practices occurred, or
allowed the continuance of such a
policy or custom, (4) the defendant
was grossly negligent in supervising
subordinates who committed the
wrongful acts, or (5) the defendant
exhibited deliberate indifference to
the rights of inmates by failing to
act on information indicating that
unconstitutional acts were occurring.
Id. (citations omitted). A plaintiff may not rely upon the
doctrine of respondeat superior to establish supervisory
liability under 42 U.S.C. § 1983. Monell v. New York City
Department of Social Services, 436 U.S. 658, 691–95, 98
S.Ct. 2018, 56 L.Ed.2d 611 (1978).
[1] Applying these legal principles to the facts of this
case, the Court first finds that judgment must be granted
as to Superintendent McGinnis and Deputy Superintendent
Morse. In support of the motion to dismiss the supervisory
liability claims, defendants' counsel has submitted sworn
interrogatory responses from McGinnis and Morse, in which
they deny any knowledge of Gridley having committed
assaults on inmates. McCarthy Aff. [# 47], Ex. B. Defendants
have also submitted a portion of the transcript of plaintiff's
April 1, 2001 deposition, in which he testified that he did
not have any direct personal knowledge that either McGinnis
or Morse knew, prior to August 28, 1998, that Gridley had
mistreated other inmates. Id., Ex. B. Plaintiff testified that he
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assumed that McGinnis and Morse must have become aware
of assaults by Gridley through reading incident reports and
letters from inmates, although he admitted that he did not have
any evidence of that. Id., pp. 61–62.
In opposition to defendants' motion, plaintiff has not supplied
any evidence that either McGinnis or Morse were deliberately
indifferent to a danger of assault by Officer Gridley. Rather,
plaintiff now lists a number of inmates who were allegedly
assaulted by corrections officers over a period of years. 2
However, with the exception of an alleged assault of an inmate
named R. Stokes, none of those alleged incidents involved
Gridley. As to Stokes, plaintiff has provided an affidavit
from him, in which Stokes claims that, prior to the alleged
incident involving plaintiff, Gridley applied handcuffs to him
“sadistically,” but Stokes does not allege that he ever made
McGinnis or Morse aware of the incident. Complaint, Ex.
7; Plaintiff's Aff. in Support of Attempted to Exhaust [sic]
Administrative Remedies, Attached Aff. of Roger Stokes . 3
Plaintiff also makes an unsubstantiated, hearsay accusation
that Gridley kicked out the teeth of an inmate named
Miguel Hacha on March 10, 1995. Plaintiff's Aff. in Support
of Supervisor Liability Against Defendants McGinnis and
Morse, ¶¶ 20, 24. There is no indication, though, in the record
that plaintiff either actually witnessed, or that he has any
personal knowledge regarding the alleged incident. Plaintiff's
claim that Hacha filed an inmate grievance concerning the
matter is similarly unsupported hearsay. The Court, therefore,
finds that plaintiff has not come forward with evidentiary
proof in admissible form sufficient to create a triable issue
of fact as to supervisory liability under Section 1983, and
accordingly, grants summary judgment as to defendants
McGinnis and Morse.
*4 Defendants further contend that plaintiff's remaining
claims must be dismissed pursuant to 42 U.S.C. § 1997e(a),
because he did not exhaust his administrative remedies before
commencing this action. 42 U.S.C. § 1997e(a) provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are
exhausted.” It is well settled that,
[i]n New York State, those remedies
consist of a three-step review
process. Once a grievance is
submitted to the inmate grievance
resolution committee (“IGRC”), (1)
the grievance is investigated and
reviewed by the IGRC, which is
comprised of inmates and DOCS
employees; (2) if appealed, the
superintendent of the facility reviews
the IGRC's determination; and (3)
if the superintendent's decision is
appealed, the Central Office Review
Committee (“CORC”) makes the final
administrative determination. Only
upon exhaustion of these three levels
of review may a prisoner seek relief
pursuant to § 1983 in federal court.
Reyes v. Punzal, 206 F.Supp.2d 431, 432 (W.D.N.Y.2002)
(citations omitted). Where a plaintiff has failed to comply
with 42 U.S.C. § 1997e(a) prior to commencing his lawsuit,
the district court should dismiss the action without prejudice.
Neal v.. Goord, 267 F.3d 116, 121–23 (2d Cir.2001), overruled
in part on other grounds, Porter v. Nussle, 534 U.S. 516, 122
S.Ct. 983, 152 L.Ed.2d 12 (2002).
Here, it is undisputed that plaintiff did not actually exhaust
his administrative remedies before commencing this action.
However, he contends that he made a good faith effort
to exhaust, but was prevented from doing so by unknown
prison staff. Specifically, he states that on August 3, 1998,
he filed two grievances, one concerning the purported
assault by Gridley, and one concerning the alleged denial
of medical treatment by Miller, by handing them to the
individual collecting outgoing mail in Attica's 4 Segregated
Housing Unit (“SHU”). Plaintiff's Aff. in Support of Attempt
to Exhaust, ¶¶ 8, 17–19. He maintains that, when he
did not receive a response to those complaints, he filed
another grievance in the same manner on August 14,
1998, complaining that his grievances were not being
processed. Having received no response to any of the three
grievances, he claims that on September 13, 1998, he wrote
to Superintendent McGinnis, complaining about the alleged
assault and failure to provide medical care, as well the failure
to process his grievances. 5 Plaintiff contends that when
McGinnis did not respond, on October 27, 1998, he filed an
appeal with the Central Office Review Committee (“CORC”).
CORC has no record of ever having received such an appeal.
Bellamy Aff. [# 46]. Nonetheless, plaintiff maintains that he
did mail the appeal, by placing it in the custody of Attica staff,
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just as he had earlier mailed the grievances and the appeal
letter to McGinnis.
*5 [2] There is a “general principle that an inmate's
technical failure to exhaust administrative remedies before
commencing a § 1983 action may be excused where officials
prevented him from utilizing a grievance procedure.” Arnold
v. Goetz, – F.Supp.2d –, No. 01 Civ. 8993(WK), 2003 WL
256777 at *6 (S.D.N.Y. Feb.4, 2003) (citations omitted). As
the Court noted in Arnold v. Goetz, “prison officials cannot
have it both ways—they cannot obstruct an inmate's pursuit
of administrative exhaustion on the one hand and then claim
the inmate did not properly exhaust these remedies on the
other.” Id. Based upon plaintiff's affidavit, the Court finds that
there is a triable issue of fact as to whether or not prison staff
prevented him from exhausting his administrative remedies.
Defendants, however, contend that they are nonetheless
entitled to summary judgment on the exhaustion issue, since
plaintiff's attempts to exhaust were untimely. In that regard,
defendants refer to to 7 N.Y.C.R.R. §§ 701.7 & 701.8,
which establish certain deadlines in the inmate grievance
process. For example, § 701.7(a)(3) & (4) provide that the
Inmate Grievance Resolution Committee “shall have up to
seven working days to review a grievance and resolve it
informally,” and that if there is no informal resolution, a
hearing “must take place within seven working days after
receipt of the grievance.” Moreover, § 701.7(b)(1) provides
that an inmate may file an appeal “[w]ithin four working
days receipt of the committee's written response to the
grievance,” and that, “[i]f no appeal is filed upon denial by
the IGRC, it will be presumed that the grievant or direct
party accepts the committee's recommendation.” Section
701.7(b) also specifies deadlines for the superintendent
to respond to grievances. Section 701.7(c)(1), meanwhile,
states that “[w]ithin four working days after receipt of the
superintendent's written response, an inmate ... may appeal
the superintendent's action to the CORC by filing an appeal
with the IGP clerk.” Defendants contend that, if an inmate
does not receive a response, either from the IGRC or the
Superintendent, within the time specified for the IGRC or the
superintendent to take action, he must file an appeal to the
next level of review, or else be time barred from exhausting
administrative remedies. 6
Defendants do not cite any New York regulation to support
this theory, and, on the contrary, § 701.7 expressly provides
that the deadlines for inmates to file appeals are triggered
by the inmate's receipt of a written response from either the
IGRC or the superintendent. Section 701.8 states that “matters
not decided within the time limits may be appealed to the next
step,” but is not mandatory. (emphasis added). Defendants
have not cited any case authority from this circuit to support
their theory, and the two cases from other circuits which they
have cited, Marsh v. Jones, 53 F.3d 707 (5 th Cir.1995) and
Wright v. Morris, 111 F.3d 414 (6 th Cir.1997), are factually
inapposite. Under the facts of the instant case, viewed in
the light most favorable to plaintiff, the Court declines to
find that plaintiff's appeals are time barred. Consequently,
defendants' motion for summary judgment pursuant to 42
U.S.C. § 1997e(a) is denied.
*6 [3] The Court also denies defendants' application
for summary judgment as to plaintiff's claims involving
the ganglion cyst on his right forearm. 7 A plaintiff suing
under Section 1983 must demonstrate that the defendant's
actions were the proximate cause of the alleged injury.
Taylor v. Brentwood Union Free School Dist., 143 F.3d 679
(2d Cir.1998), cert. denied, 525 U.S. 1139 (1999). It is a
“well established principle that questions of causation are
generally questions of fact to be submitted to the jury.”
Petrozza v. Inc. Village of Freeport, 602 F.Supp. 137, 144
(E.D.N.Y.1984)(citing PROSSER, LAW OF TORTS § 45
(4th ed.1971)). Here, plaintiff claims to have suffered trauma
to his wrists as a result of Gridley's use of handcuffs, and he
subsequently developed a cyst at the site of the trauma. The
Court finds that it is an issue of fact for trial as to whether or
not the ganglion cyst was caused by the alleged assault.
[4] Finally, in its initial Decision and Order [# 4] in this
action, entered on October 23, 2000, the Court granted
plaintiff's application to proceed in forma pauperis, and
reviewed the complaint pursuant to 28 U.S.C. § 1915(e)(2)
(B). At that time, the Court understood that plaintiff was only
asserting claims pursuant to 42 U.S.C. § 1983. See, Decision
and Order [# 4], p. 4 (“Plaintiff brings this action pursuant
to 42 U.S.C. § 1983.”). In connection with its review of the
record in this action, the Court has reviewed the complaint,
and notes that the complaint also purports to assert pendent
state tort claims for assault, battery, and negligence. See,
e.g., Complaint, p. 1. Any state tort causes of action should
have been dismissed in the Court's initial Decision and Order,
pursuant to New York Corrections Law § 24, which bars
civil actions against officers and employees of the Department
of Correctional Services, in the individual capacities, “for
damages arising out of any act done or the failure to perform
any act within the scope of the employment and in the
discharge of the duties by such officer or employee.” In
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Baker v. Coughlin, 77 F.3d 12, 15 (2d Cir.1996), the Second
Circuit Court of Appeals held that Corrections Law § 24, “by
its plain terms, precludes the assertion of [state law] claims
against corrections officers in any court, including the federal
courts.” Accordingly, the Court now dismisses plaintiff's state
tort causes of action against all of the defendants in their
individual capacities. 8
CONCLUSION
With regard to plaintiff's causes of action pursuant to 42
U.S.C. § 1983, defendants' motion for summary judgment is
granted as to McGinnis and Morse, and is denied as to Gridley
and Miller. Plaintiff's state tort causes of action are dismissed
as against all defendants. The case will proceed to trial only
on the Section 1983 claims against Gridley and Miller. By
separate order, the Court will schedule a pre-trial conference.
So ordered.
All Citations
Not Reported in Fed. Supp., 2003 WL 23101781
Footnotes
1 The Complaint does not assert supervisory liability claims against McGinnis or Morse in connection with
Miller's alleged failure to provide medical care.
2 Plaintiff offers no explanation of how he has now come to have this information, which he claimed he did not
have at the time of his deposition.
3 In his affidavit attached to the complaint, Stokes stated only that he was injured by Officer Gridley's misuse of
handcuffs, but did not indicate that he filed a grievance or took any other action. In his affidavit submitted in
opposition to the summary judgment motion, Stokes claims that he filed grievances regarding the incident on
three separate occasions, but “never receive[d] any response from the inmate grievance complaint office.”
Plaintiff's Aff. in Support of Attempted to Exhaust Administrative Remedies, Attached Aff. of Roger Stokes.
Stokes does not allege that he ever made McGinnis or Morse aware of the alleged incident.
4 As discussed above, the incidents complained of occurred at Southport Correctional Facility. The day
following the alleged incidents, plaintiff was moved to Attica Correctional Facility and placed in Attica's SHU.
Plaintiff contends that he attempted to mail his various grievances and letters from Attica to Southport.
5 Defendants contend that there is no record of any of the three grievances having been received. In support
of the motion for summary judgments, defendants have submitted an affidavit from William Ciancio, the
Inmate Grievance Supervisor at Southport. In it, Ciancio states that he “caused a print-out to be made of all
grievances filed by inmate Jose Reyes (93–R–3077) while he was incarcerated at Southport.” Ciancio Aff.
[# 45], ¶ 2 (emphasis added). However, Reyes was incarcerated at Attica, not Southport, when he allegedly
filed the grievances.
6 Defendants allege that plaintiff was 19 days late in filing his appeal to the superintendent, and 36 days late
in filing his appeal to CORC.
7 In footnote 5 of their reply brief, defendants state that they wish to amend their motion for summary judgment,
to include plaintiff's claim that he suffered neuropathy as a result of Gridley's application of handcuffs. That
application is denied, since plaintiff did not have notice or an opportunity to be heard on that issue.
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8 The Court's initial Decision and Order dismissed all claims against the defendants in their official capacities,
pursuant to the Eleventh Amendment. Decision and Order [# 4], p. 4.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Foskey v. Paige, N.D.N.Y., March 4, 2024
2017 WL 2791063
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Edy RODRIGUEZ, Plaintiff,
v.
J. CROSS, Sergeant, Clinton
Correctional Facility; et al., Defendants.
No. 15-CV-1079 (GTS/CFH)
|
Signed 05/09/2017
Attorneys and Law Firms
Edy Rodriguez, East Elmhurst, NY, pro se.
Ryan E. Manley, Harris, Conway & Donovan, Christopher J.
Hummel, New York State Attorney General, Albany, NY, for
Defendants.
REPORT-RECOMMENDATION AND ORDER 1
Christian F. Hummel, U.S. Magistrate Judge
*1 Plaintiff pro se Edy Rodriguez (“Plaintiff”), an inmate
who was, at all relevant times, in the custody of the New
York Department of Corrections and Community Supervision
(“DOCCS”), brings this action pursuant to 42 U.S.C. §
1983, alleging that Sergeant (“Sgt.”) J. Cross, Sgt. R. Furnia,
Correction Officer (“C.O.”) G. Falcon, and C.O. J. Roberts
(collectively “Defendants”) violated his constitutional rights
under the First and Eighth Amendments. Dkt. No. 1
(“Compl.”). 2
Presently pending is defendants' motion for summary
judgment pursuant to Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 56(a) for plaintiff's failure to exhaust
administrative remedies before commencing this action. Dkt.
No. 26. Plaintiff filed a response in opposition to defendants'
motion. Dkt. No. 34. Defendants filed a reply. Dkt. No. 39.
I. Background
The facts are reviewed in the light most favorable to plaintiff
as the non-moving party. See subsection II(A) infra. At
the relevant times giving rise to plaintiff's claims, plaintiff
was an inmate incarcerated at Clinton Correctional Facility
(“Clinton”).
On July 10, 2014, plaintiff wrote a letter to Sgt. Cross
“complaining about being harassed” by staff at Clinton.
Compl. at 4. Plaintiff further alleges that he was taken out of
his cell on July 14, 2014, brought to the second floor of the
facility's hospital, and subjected to a “beating” by defendants.
Compl. at 4-5. Sgt. Cross grabbed him by the hair; Sgt. Furnia
punched him; and C.O. Falcon and C.O. Roberts punched him
in the face, back, and neck. Id. at 4. Plaintiff alleges “each
one of the blows” he suffered was from the named defendants,
as well as other officers he cannot identify by name. Id. at
5-6. After the alleged incident, plaintiff was seen by a nurse
with “about ten” officers present in the room, where he admits
“having no choice,” but to tell the nurse that officers had
just beat him up. See Affirmation of Christopher J. Hummel
(“Hummel Aff.”), Dkt. No. 26-1, Exhibit (“Exh.”) A 3 at
59-60. 4
While at Clinton, plaintiff filed five grievances. See
Declaration of Christine Gregory (“Gregory Decl.”), Dkt.
No. 26-3 Exh. A at 6. Only one grievance was appealed.
Declaration of Jeffrey Hale (“Hale Decl.”), Dkt. No. 26-2 ¶¶
12-13. The subject matter of the single appealed grievance
does not concern the matter before the Court. Id. ¶ 12. The
only grievance filed that is pertinent to the pending motion
was filed on July 29, 2014. See Gregory Decl. Exh. B at 8.
This grievance alleges that plaintiff suffered “an assault by
(C.O.)” and, following the assault, did not receive appropriate
medical care. Id. The investigation into the July 29, 2014
grievance concluded that plaintiff saw his medical provider,
and medicine was given to him without any further action. Id.
at 10. The investigation did not mention anything about an
assault. Id.
*2 Plaintiff alleges that he filed a grievance regarding the
incidents described in his complaint, but an unidentified
Sergeant destroyed the grievance. Compl. at 2. He also alleges
that he was beaten by correction staff for filing the grievance.
Id. Plaintiff also states that he filed a handwritten grievance
(not on a grievance form) on July 19, 2014, regarding the July
14, 2014 incident. See Hummel Aff. Exh. A at 93. Plaintiff
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alleges that he sent a copy of this grievance to his mother and
instructed her to send it directly to Clinton “[f]rom outside.”
Id. at 94. Defendants have no record of this grievance being
filed. See Gregory Decl. Exh. A at 6. Plaintiff never inquired
further about the July 19, 2014 grievance, but maintains that
he has handwritten copies of the grievance since he did not
have access to carbon paper when he originally drafted this
grievance. See Hummel Aff. Exh. A at 94-95, 96-97. The
July 19, 2014 grievance was drafted while plaintiff was in
keeplock. Id. at 93.
Plaintiff further alleges, in his response to defendants' motion
for summary judgment, that defendants have total control
over facility mail and any failure to exhaust administrative
remedies occurred because defendants strategically removed
grievances from the mailbox to cover up their use of excessive
force against plaintiff. See Dkt. No. 34 at 4. Plaintiff
further alleges a general belief that there is a pattern of
prison officials threatening and retaliating against inmates
for filing grievances, thus making administrative remedies
unavailable. Id. at 6. Lastly, plaintiff alleges that there is
an “unwritten posture” at Clinton where inmates are not
given grievance forms unless they provide a clear description
of their complaint, or the complaint does not involve staff
misconduct. Id. at 8.
II. Discussion 5
Plaintiff alleges that defendants retaliated against him in
violation of the First Amendment, used excessive force
against him in violation of the Eighth Amendment, and
violated his Due Process rights under the First and Fourteenth
Amendments. See Compl. at 7. Defendants argue that
plaintiff's complaint should be dismissed in its entirety as
plaintiff failed to exhaust his administrative remedies with
respect to the causes of action outlined in the Complaint. See
Defendants' Memorandum of Law, Dkt. No. 26-5 at 3.
A. Legal Standard For Motions
Pursuant to Fed. R. Civ. P. 56(a)
“A court shall grant summary judgment if the movant shows
that 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). The moving party has the burden of
showing the absence of disputed material facts by providing
the Court with portions of “pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any,” which support the motion. FED. R. CIV.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
A fact is material if it may affect the outcome of the case as
determined by substantive law, such that “a reasonable jury
could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “In
determining whether summary judgment is appropriate, [the
Court] will resolve all ambiguities and draw all reasonable
inferences against the moving party.” Skubel v. Fuoroli, 113
F.3d 330, 334 (2d Cir. 1997).
To avoid summary judgment, a non-moving party “must
do more than simply show that there is some metaphysical
doubt as to the material facts.” Carey v. Crescenzi, 923 F.2d
18, 19 (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co.,
Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). A
non-moving party must support such assertions by evidence
showing the existence of a genuine issue of material fact.
Carey, 923 F.2d at 19. “When no rational jury could find
in favor of the non-moving party because the evidence to
support is so slight, there is no genuine issue of material
fact and a grant of summary judgment is proper.” Gallo v.
Prudential Services, Ltd. Partnership, 22 F.3d, 1219, 1224 (2d
Cir. 1994).
*3 Where, as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special solicitude.
See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477
(2d Cir. 2006). As the Second Circuit has 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. (citations and footnote omitted); see also Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185, 191–92 (2d Cir. 2008).
B. Exhaustion of Administrative Remedies
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The Prison Litigation Reform Act (“PLRA”) requires that a
prisoner exhaust any administrative remedies available to him
or her before bringing an action for claims arising out of his or
her incarceration. Porter v. Nussle, 534 U.S. 516, 524 (2002);
see also Woodford v. Ngo, 548 U.S. 81, 82 (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.’ ” Mauldin v. Kiff, No. 11-CV-107-
A, 2014 WL 2708434, at *4 (W.D.N.Y. June 16, 2014)
(quoting 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. Porter, 534 U.S. at 524. To 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.
Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation
omitted).
Although the Supreme Court has deemed exhaustion
mandatory, the Second Circuit has recognized that “certain
caveats apply.” Ruggiero v. County of Orange, 467 F.3d
170, 175 (2d Cir. 2006) (citation omitted). Until recently,
courts in this District followed a three-part test established
by the Second Circuit in Hemphill v. New York, 380 F.3d
680, 686 (2d Cir. 2004). Under the test established in
Hemphill, a plaintiff's failure to exhaust could be excused
if a plaintiff established that his or her failure to exhaust
was justified by “special circumstances.” Id. However, the
Supreme Court recently held that “[c]ourts may not engraft an
unwritten ‘special circumstances’ exception onto the PLRA's
exhaustion requirement.” Ross v. Blake, 136 S. Ct. 1850,
1862 (2016). As such, the special circumstances exception
previously promulgated by the Second Circuit in Hemphill
is no longer consistent with the statutory requirements of the
PLRA. Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016).
*4 Although the Supreme Court's decision in
Ross eliminates the “special circumstances” exception
promulgated by Hemphill, courts must still consider the
PLRA's “textual exception to mandatory exhaustion.”
Ross, 136 S. Ct. at 1858. 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. 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. at 1859
(citing Booth v. Churner, 532 U.S. 731, 736, 738 (2001)).
“Next, an administrative scheme might be so opaque that
it becomes, practically speaking, 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. at 1860.
Here, there is no genuine dispute that at all relevant times,
DOCCS had in place a three-step inmate grievance program.
N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5. First,
the inmate must file a complaint with an inmate grievance
program (“IGP”) clerk within twenty-one days of the alleged
incident. Id. at § 701.5(a)(1). An IGP representative has
sixteen calendar days to informally resolve the issue. Id. at
§ 701.5(b)(1). If no informal resolution occurs, the Inmate
Grievance Review Committee (“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. 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.
Id. § 701.5(c)(1). If the superintendent's determination is
unfavorable to the inmate, the inmate may appeal to the
Central Office Review Committee (“CORC”) within seven
days after receipt of the superintendent's determination. Id.
§§ 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).
1. Application
First, the Court will address whether there is any genuine
dispute that plaintiff failed to exhaust his administrative
remedies. Courts in the Second Circuit have consistently
held that any informal resolutions or relief outside of
the administrative procedures do not satisfy exhaustion
requirements. See, e.g., Macias v. Zenk, 495 F.3d 37, 43
(2d Cir. 2007) (holding that regardless of whether prison
officials know of plaintiff's complaints in a “substantive
sense,” procedural exhaustion of remedies must still occur);
Ruggiero v. Cty. of Orange, 467 F.3d 170, 177-78 (2d Cir.
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2006); Perez v. City of N.Y., No. 14 CIV. 07502(LGS), 2015
WL 3652511, at *4 (S.D.N.Y. June 11, 2015) (“Plaintiff's
allegation that he advised others of his grievance does not
excuse his failure to exhaust the administrative process.”).
Here, subsequent to the alleged events giving rise to the matter
before the Court, plaintiff states he and family members
contacted the Inspector General's Office to complain about
prison conditions and concerns of plaintiff's safety. See
Hummel Aff. Exh. A at 89, 90. Such correspondence does
not satisfy exhaustion and falls outside of the grievance
procedures. See Geer v. Chapman, No. 9:15-CV-952(GLS/
ATB), 2016 WL 6091699, at *5 (N.D.N.Y. Sept. 26,
2016), report and recommendation adopted, No. 9:15-
CV-952 (GLS/ATB), 2016 WL 6090874 (N.D.N.Y. Oct.
18, 2016) (“It is well-settled that writing letters to prison
officials, or other officials, is insufficient to properly exhaust
administrative remedies.”); Salmon v. Bellinger, No. 9:14-
CV-0827(LEK/DJS), 2016 WL 4411338, at *4 (N.D.N.Y.
July 5, 2016), report and recommendation adopted by,
No. 9:14-CV-0827(LEK/DJS), 2016 WL 4275733 (N.D.N.Y.
Aug. 12, 2016) (holding that letters sent to the Inspector
General do not satisfy exhaustion procedures).
*5 After the alleged incident of excessive force, plaintiff
was seen by a nurse in a room with “about ten” officers
present, where he admits “having no choice” but to tell the
nurse that the officers had beat him up. Hummel Aff. Exh.
A at 59-60. Plaintiff alleges filing grievances on July 19,
2014 and July 29, 2014 that mention the assault. See id. at
93; Gregory Decl. Exh. B at 6, 8-10. Defendants state that
there is no record of appeal on any grievances pertaining
to the alleged assault. Gregory Decl. ¶ 15. While plaintiff's
complaints were aired verbally and in writing, plaintiff failed
to utilize the procedures required to exhaust administrative
remedies. Timmons v. Schriro, No. 14-CV-6606(RJS), 2015
WL 3901637, at *3 (S.D.N.Y. June 23, 2015) (“[T]he law
is well-settled that informal means of communicating and
pursuing a grievance, even with senior prison officials,
are not sufficient under the PLRA.”). Thus, there is no
genuine dispute that plaintiff failed to exhaust administrative
remedies.
As a result, the Court must determine whether administrative
remedies were in fact available to plaintiff. See Ross, 136 S.
Ct. at 1858 (“An inmate ... must exhaust available remedies,
but need not exhaust unavailable ones”); Mena v. City
of New York, No. 13-cv-2430(RJS), 2016 WL 3948100,
at *4 (S.D.N.Y. July 19, 2016) (citing Ross, 136 S. Ct.
at 1862) (“[T]he lone surviving exception to the PLRA's
exhaustion requirement is that embedded in its text: that an
inmate need only exhaust those administrative remedies that
are ‘available’ to him.”). Plaintiff sets forth three factual
arguments as to why administrative remedies were not
available to him. First, plaintiff alleges that the grievance
procedures were unavailable to him because he was denied
access to paper and writing instruments. See Compl. at 3.
Next, plaintiff alleges that he was physically beaten when he
attempted to take steps to utilize the grievance process. Id.
Lastly, plaintiff suggests that he never received a response to
his grievance, his mail was tampered with, and his letters were
not delivered. See Hummel Aff. Exh. A at 91-92, 94.
a. Lack of Paper and Pen to
Complete Grievance Procedures
The third prong of Ross is triggered by plaintiff's argument
that he was denied access to pen and paper, as it shows
an alleged attempt to stop him from taking part in the
grievance process. When a plaintiff-inmate asserts that
a defendant-facility withheld pens, courts have granted
summary judgment against a plaintiff when “the record does
not show that “[p]laintiff indicated to prison officials that
he needed a pen so he could file a grievance or that prison
officials refused to provide him a pen for this purpose.” Mena
v. City of N.Y., No. 12 CIV. 6838(GBD), 2013 WL 3580057,
at *2 (S.D.N.Y. July 10, 2013). When an inmate argues that
a correction officer denies him access to pen or paper, even
assuming the allegations are true, courts examine whether the
inmate was drafting other documents during the same time
period, or whether they were able to access materials from
other sources. See Williams v. Ramos, No. 13 CV 826(VLB),
2015 WL 864888, at *3 (S.D.N.Y. Feb. 9, 2015) (“It is
unclear how plaintiff was able to submit [other] grievances
if defendants took his pens and paper and threatened him ...
Moreover, when defendants allegedly stole his pens and
papers, plaintiff testified he was able to file grievances on
his commissary sheet.”); Lahoz v. Orange Cty. Jail, No. 08
CIV. 4364(RWS), 2010 WL 1789907, at *3 (S.D.N.Y. Apr.
29, 2010) (stating that an inmate was not deprived of writing
materials when he drafted a handwritten letter during the same
time period as the grievance process).
Here, the Court notes contradictory statements within
the complaint pertaining to plaintiff's access to writing
instruments or paper. When prompted as to why facts relating
to the complaint were not presented in the grievance program,
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plaintiff asserts that he was denied a paper or pen. Compl. at
3. However, plaintiff also states that he wrote a grievance, the
grievance was destroyed by a Sergeant, and he was beaten in
retaliation for writing the grievance. See id. at 2. The only
time plaintiff asserts that he was denied a paper and pen was
when he was taken to the Special Housing Unit (“SHU”) 6 on
July 14, 2014 after the alleged incident. See id. at 3; Hummel
Aff. Exh. A at 68. In fact, records indicate that plaintiff filed
grievances on July 19, July 29, August 4, and November 19 of
that same year. 7 Gregory Decl. Exh. A at 6. Plaintiff does not
allege any difficulties obtaining a pen and paper after the July
2014 SHU stay, but rather, admits having “a piece of paper
that an inmate had and a pen” on at least one occasion. See
id. at 94.
*6 Lastly, in his response to defendants' motion for summary
judgment, plaintiff alleges that there is an “unwritten posture”
at Clinton where inmates are not given grievance forms unless
they provide a clear description of their complaint, or if their
complaint does not involve staff misconduct. Dkt. No. 34
at 8. Such general allegations without any factual support
are insufficient to show that procedures were unavailable,
coupled with the fact that, grievances can and have been
submitted by plaintiff on plain paper. N.Y. COMP. CODES
R. & REGS. tit. 7, § 701.5(a)(1) (“If this form is not readily
available, a complaint may be submitted on plain paper.”);
see Veloz v. N.Y., 339 F. Supp. 2d 505, 516 (S.D.N.Y.
2004), aff'd, 178 Fed.Appx. 39 (2d Cir. 2006) (granting
summary judgment where plaintiff does not allege that any
specific officer thwarted his efforts to timely file a grievance);
Hummel Aff. Exh. A at 94.
Even if the Court assumes that plaintiff was denied access to
pen and paper while in the SHU, the grievances filed in July
2014 were filed within the twenty-one calendar days required,
and his subsequent failure to exhaust administrative remedies
regarding those grievances is unaffected by any denial of pen
and paper that occurred in the past. Thus, the Court rejects
plaintiff's argument as there is no genuine dispute of fact
that administrative remedies were unavailable due a lack of
writing instruments or paper.
b. Allegation that Grievance Was
Not Received and Mail Tampering
Courts have long held that where an inmate does not receive
a response to a written grievance, the inmate must appeal
to the next level of review. See Khudan v. Lee, No. 12-
cv-8147(RJS), 2015 WL 5544316, at *5 (S.D.N.Y. Sept. 17,
2015) (dismissing a plaintiff's complaint where plaintiff failed
to appeal to the next level of review after not receiving
a response to his filed grievance); see also Veloz v. New
York, 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004), aff'd, 178
Fed.Appx. 39 (2d Cir. 2006) (“[P]laintiff's allegation that
these particular grievances were misplaced or destroyed by
correctional officers ultimately does not relieve him of the
requirement to appeal these claims to the next level once it
became clear to him that a response to his initial filing was
not forthcoming.”).
However, recent decisions by courts in the Second Circuit
have addressed the availability of administrative remedies
when an inmate's grievance is unfiled and unanswered. These
cases have focused on the second prong of the Ross test,
where a grievance process becomes unusable for an inmate.
Ross, 136 S. Ct. at 1859. In Williams v. Priatno, the Second
Circuit held that when an inmate's grievance is not filed,
“the regulations plainly do not describe a mechanism for
appealing a grievance.” See 829 F.3d at 126. Thus, “the
process to appeal an unfiled and unanswered grievance is
prohibitively opaque, such that no inmate could actually
make use of it.” Id. The Williams ruling relied upon a
scenario where an inmate is housed in a SHU and personally
gives a grievance to a correction officer, as required by
grievance procedures. Id. at 120-21. Additionally, adding
to the “opaque” nature of the procedures, the plaintiff in
Williams followed up when he did not receive a response
after a week, but was subsequently transferred one week later
without any resolution or knowledge of his grievance being
filed. Williams, 829 F.3d at 120-21. Ultimately, the Williams
Court held that “in giving his grievance to the correction
officer, [the plaintiff] exhausted all administrative remedies
that were available to him.” Id. at 126.
Here, in his September 19, 2016 deposition, plaintiff sets
forth facts suggesting prison staff filtered his mail and “when
they [saw] grievances” they were thrown to the side, not
delivered, “and were never [ ] seen.” See Hummel Aff. Exh.
A at 91-92. The grievance that plaintiff allegedly filed on
July 19, 2014 was sent to the Clinton grievance office by
his mother. Id. at 94. Plaintiff never received a response on
the grievance or followed up on the status of the grievance.
Id. Without concrete facts, plaintiff states that his grievance
was not resolved because “no civilian ... picks up your
grievances. It's officers.” Id. at 91. Plaintiff's allegations of
mail tampering are conclusory and weakened by the fact that
other correspondence, including complaints, were sent and
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received during the general time period material to the issues
before the Court. Johnson v. Fraizer, No. 16-CV-6096(CJS),
2016 WL 7012961, at *4 (W.D.N.Y. Dec. 1, 2016) (“Plaintiff
makes only a conclusory statement that his mailing was not
allowed to leave the facility[,] ... his contention ... is belied by
his admission that he was able to send other complaints about
the matter to various New York State officials at around the
same time.”); see Hummel Aff. Exh. A at 89, 94 (providing
an example where plaintiff successfully sent legal mail to his
mother).
*7 In plaintiff's response in opposition to defendants'
motion for summary judgment, he raises general complaints
about defendants having total control over facility mail
and defendants strategically removing grievances from the
mailbox to cover up their excessive use of force against
plaintiff and other inmates. See Dkt. No. 34 at 2. Plaintiff's
bare assertions do not excuse exhaustion requirements.
Courts in this Circuit have continuously held that mere
contentions or speculation of grievances being misplaced
by officers do not create a genuine issue of material fact
when there is no evidence to support the allegations. Khudan,
2016 WL 4735364, at *6 (citations omitted) (holding that
under Ross, mere stand alone contentions of mail tampering
without support and particularity cannot deem administrative
remedies unavailable); Veloz, 339 F. Supp. 2d at 516 (holding
that summary judgment is proper where the plaintiff contends
that officers misplaced his grievances, but offers no evidence
to support his claim). In Khudan, the court did not consider
or rely upon conclusory allegations when plaintiff attested he
“was informed by other [unnamed] inmates that grievances
routinely go ‘missing.’ ” Khudan, 2016 WL 4735364, at *6.
This is similar to plaintiff's conclusory theory of injustice
and displeasure with mail procedures, and other “recurrent
pattern[s]” in New York correctional facilities. Dkt. No. 34
at 2, 4; see Khudan, 2016 WL 4735364, at *6 (“Plaintiff's
accusations, which ‘stand alone’ and are ‘unsupported,’
are insufficient to withstand summary judgment.”) (quoting
Bolton v. City of N.Y., No. 13-CV-5749(RJS), 2015 WL
1822008, at *2 (S.D.N.Y. Apr. 20, 2015)).
Courts have denied a defendant's motion for summary
judgment when faced with an unanswered and unfiled
grievance drafted in SHU. See, e.g., Juarbe v. Carnegie,
No. 9:15-CV-01485(MAD/DEP), 2016 WL 6901277, at
*1, 4 (N.D.N.Y. Nov. 23, 2016). This is distinguishable
from plaintiff's alleged July 19, 2014 grievance drafted in
keeplock. 8 Such a difference in inmate housing supports
the notion that, “the Second Circuit's decision hinged on
the ‘extraordinary circumstances’ specific to the case before
it.” Mena v. City of N.Y., No. 13-CV-2430(RJS), 2016 WL
3948100, at *5 (S.D.N.Y. July 19, 2016) (quoting Williams,
829 F.3d at 119); see N.Y. COMP. CODES R. & REGS. tit.
7, § 701.7 (explaining that there are different grievance filing
procedures for an inmate housed in the SHU). Inmates not
housed in the SHU are in a different position to SHU inmates
when determining if grievance procedures are “essentially
unknowable” or unavailable. Id. at *5 (quoting Ross v. Blake,
136 S. Ct. at 1859).
Plaintiff never followed up on the July 19, 2014 grievance.
Hummel Aff. Exh. A at 94-95. However, on July 29, 2014,
he filed a grievance in the facility that included medical
complaints, but also a reference to the alleged assault
on July 14, 2014. See Gregory Decl. Exh. B at 8. The
Clinton grievance department received and responded to
this grievance. Id. This grievance was not appealed. Id.
¶ 15. Even assuming, as the Court must on this motion,
that plaintiff's allegations of mail tampering are true, he
did not exhaust his administrative remedies when he failed
to appeal the July 29, 2014 grievance to the next level of
review. The fact that this grievance was subsequently filed
and not appealed within close proximity to the July 19,
2014 grievance, coupled with three unrelated grievances filed
within the next year, demonstrates that plaintiff's situation
does not rise to the level where the grievance process
is “opaque,” unavailable, or unascertainable. See Hill v.
Tisch, No. 02CV3901(DRH/AYS), 2016 WL 6991171, at *7
(E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to
demonstrate that the grievance “procedures were essentially
unknowable”); Gregory Decl. Exh. A at 6.
c. Allegation that Plaintiff Suffered
Retaliation and Physical Beatings
Plaintiff's pleadings also suggest an inquiry under the third
prong of Ross, whether “machination, misrepresentation,
or intimidation” occurred. See Ross, 136 S. Ct. at 1860.
Specifically, plaintiff alleges that he did not comply with the
grievance procedures because he was subjected to physical
beatings, retaliation, and intimidation after complaining about
conditions at Clinton. See Compl. at 3, 4, 7. For these reasons,
he believed the grievance procedures were unavailable. See
id. at 2-3.
*8 Specific threats of retaliation or intimidation by prison
employees can render administrative remedies unavailable.
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Ross, 136 S. Ct. at 1860 & n.3. However, a generalized
fear of retaliation is insufficient to overcome a failure to
exhaust administrative remedies. Salmon, 2016 WL 4411338,
at *5. Estoppel is found where “verbal and physical threats
of retaliation, physical assault, denial of grievance forms
or writing implements, and transfers” occur showing that
defendants acted affirmatively to prevent an inmate from
availing him or herself of the grievance procedures. Id. at
*5 (quoting Amador v. Andrews, 655 F.3d 89, 103 (2d
Cir. 2011)). In Riles, the Second Circuit affirmed a district
court's ruling that prison officials' alleged threats did not
interfere with exhaustion efforts when plaintiff stated he was
threatened “if he pushed the issue,” but then subsequently
filed a grievance in spite of the alleged threats. See Riles v.
Buchanan, 656 Fed.Appx. 577, 581 (2d Cir. 2016) (summary
order).
Relying on Ross, courts have carved out factual limitations to
the third prong of unavailability concerning fear of retaliation.
See, e.g., Aviles v. Tucker, No. 14-CV-08636(NSR), 2016
WL 4619120, at *3-4 (S.D.N.Y. Sept. 1, 2016) (citing Ross,
136 S. Ct. at 1860). In Aviles, the court noted a longstanding
rule that general beliefs of retaliation or fears do not excuse
the exhaustion requirement. Aviles, 2016 WL 4619120, at *4
(citations omitted). Circumstances that have met the threshold
of unavailability by means of intimidation have included
widespread beatings with assertions of fear for one's life,
in conjunction with the plaintiff withholding all complaints
until he was transferred to a different facility. See, e.g., id.
(quoting Thomas v. Cassleberry, No. 03-cv-6394L, 2007 WL
1231485, at *2 (W.D.N.Y. Apr. 24, 2007)). Allegations of
threats are conclusory where a plaintiff's allegation “does
not indicate who threatened him, when he was threatened,
or how he was threatened.” See Johnson v. Fraizer, No. 16-
CV-6096(CJS), 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1,
2016). In contrast, this Court has denied a summary judgment
motion when a plaintiff alleged he was threatened by a
specific correction that the officer would “break [plaintiff's]
bones,” and another specific correction officer threatened to
beat plaintiff “a [sic] inch from life” if he filed a grievance.
Galberth v. Durkin, No. 914CV115(BKS/ATB), 2016 WL
3910270, at *3 (N.D.N.Y. July 14, 2016).
Here, plaintiff offers conclusory allegations in his complaint
that “[he] was beaten” while attempting to access Clinton's
grievance program. Compl. at 2, 3. Plaintiff offers no
information of when or how he was threatened or beaten
after the July 14, 2014 incident. Some instances of threats
alleged by plaintiff refer to a time period before he filed a
grievance and he does not state how any specific threat or
subsequent act of violence impacted his ability to exhaust
administrative remedies related to the events that occurred
on July 14, 2014. See Aviles, 2016 WL 4619120, at *4
(finding grievance procedures available where plaintiff offers
conclusory allegations of fear and does not substantiate what
specific fears or past acts preclude him from advancing
in grievance procedures); Harrison v. Stallone, No. 9:06-
CV-902(LEK/GJD), 2007 WL 2789473, at *5 (N.D.N.Y.
Sept. 24, 2007) (“It has been held that a ‘general fear’
of retaliation is not sufficient to excuse the exhaustion
requirement.... If an inmate could simply state that he feared
retaliation, there would no point in having a grievance
procedure.”) (citations omitted); see, e.g., Hummel Aff. Ex.
A at 58. Much of plaintiff's fear is generalized. For instance,
he notes that corrections officers become agitated when they
see legal mail and “that's when harassment comes.” Hummel
Aff. Ex. A at 92. By his own admission, plaintiff denies any
actual physical force being used against him that prohibited
him from taking part in the grievance program. Hummel Aff.
Ex. A at 99; see Salmon, 2016 WL 4411338, at *5 (stating
there must be affirmative actions or specific instances of
physical assault or threats of retaliation for plaintiff to show
unavailability of the grievance process).
*9 The Court notes that plaintiff directly contradicted
allegations in his complaint by statements made in his
deposition. While the complaint alleges conclusory instances
of being “beaten by staff,” plaintiff admits that other than
being cut on his face by an inmate in the yard on October
5, 2015, there has not been any other physical force used
against him by inmates or correction officers since July 14,
2014. Hummel Aff. Ex. A at 99; Compl. at 3. This statement
contradicts plaintiff's allegations of being beaten by staff. See
Williams v. Doe, No. 12-CV-1147(HKS), 2016 WL 4804057,
at *5 (W.D.N.Y. Sept. 14, 2016) (granting a motion for
summary judgment after noting that any triable issue of fact
on exhaustion of administrative remedies can be eliminated
when plaintiff's prior representations to the court are “flatly
contradict[ed]”).
Further, this Court finds that plaintiff's failure to follow
the grievance procedures cannot be excused by fears or
intimidation, when he simultaneously made his complaints
known through other means. After the alleged incident,
plaintiff was seen by a nurse in a room with “about ten”
officers, where he admits “having no choice,” but to tell the
nurse that they had beaten him. Hummel Aff. Exh. A at 57-58.
Plaintiff also aired his complaints and concerns in writing
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outside of the grievance procedures, clearly identifying his
complaints in full substance, including the identification of
those who committed acts against him. See, e.g., Hummel
Aff. Exh. A at 93; Gregory Decl. Exh. A at 8. Similarly in
Johnson v. Fraizer, the Court rejected plaintiff's argument that
administrative remedies were unavailable where the plaintiff
alleged he was threatened by correction officers but continued
to make and send formal complaints to prison officials and
other New York State officials. Johnson v. Fraizer, No. 16-
CV-6096 (CJS), 2016 WL 7012961, at *5 (W.D.N.Y. Dec.
1, 2016). By plaintiff's own admission, it is clear that he
sought to file the initial grievance and tell others about his
complaints, which disprove any claim of intimidation or
fear of retaliation. Quick v. Omittee, No. 14-CV-1503(TJM/
CFH), 2016 WL 5219732, at *4 (N.D.N.Y. Aug. 11, 2016),
report and recommendation adopted, No. 914CV1503 (TJM/
CFH), 2016 WL 5107125 (N.D.N.Y. Sept. 20, 2016) (holding
that fear of physical retaliation or assaults does not deem
grievance procedures unavailable when plaintiff continuously
sought to file complaints with officials). Like in Quick, where
the plaintiff filed formal internal grievances and the grievance
procedures were deemed available, here the plaintiff alleges
drafting two internal grievances outlining the alleged July 14,
2014 incident. See id. at * 4; Hummel Aff. Exh. A at 93;
Gregory Decl. Exh. B at 8. Thus, plaintiff has not shown that
administrative remedies were unavailable due to intimidation
and threats.
In conclusion, the Court finds that defendants have met their
burden in showing that there is no genuine issue of material
fact as to plaintiff's failure to exhaust administrative remedies.
Accordingly, the Court recommends that defendants' motion
be granted.
III. Conclusion
For the reasons stated above, it is hereby
RECOMMENDED that defendants' motion for summary
judgment (Dkt. No. 26) on plaintiff Edy Rodriguez's
complaint (Dkt. No. 1) be GRANTED; and it is further
RECOMMENDED that plaintiff Edy Rodriguez's
complaint (Dkt. No. 1) be DISMISSED in its entirety,
without prejudice; and it is further
ORDERED, that the Clerk of the Court serve a copy of
this Report-Recommendation and Order upon the parties in
this action, pursuant to local rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may
lodge written objections to the foregoing report. Such
objections shall be filed with the Clerk of the Court.
FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN DAYS WILL PRECLUDE APPELLATE
REVIEW. Roldan v. Racette, 984 F. 2d 85, 89 (2d Cir. 1993);
Small v. Sec'y of HHS, 892 F. 2d 15 (2d Cir. 1989); 28 U.S.C.
§ 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e).
All Citations
Not Reported in Fed. Supp., 2017 WL 2791063
Footnotes
1 This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)
and N.D.N.Y.L.R. 72.3(c).
2 On March 27, 2017, this Court granted plaintiff an extension until May 1, 2017 to file a motion to amend his
complaint. Dkt. No. 38. The deadline has expired and plaintiff has not filed a motion to amend his complaint.
3 Exhibit A to the Affirmation of Christopher J. Hummel is a transcript of plaintiff's deposition, held on September
19, 2016 at Great Meadow Correctional Facility. See Dkt. No. 26-1.
4 When citing documents within the record, the Court uses the page numbers generated by CM/ECF.
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5 All unpublished opinions cited to by the Court in this Report-Recommendation and Order are, unless
otherwise noted, attached to this Report-Recommendation and Order.
6 SHUs exist in all maximum and certain medium security facilities. The units “consist of single-occupancy cells
grouped so as to provide separation from the general population....” N.Y. COMP. CODES R. & REGS. tit.
7, § 300.2(b). Inmates are confined in a SHU as discipline, pending resolution of misconduct charges, for
administrative or security reasons, or in other circumstances as required. Id. at pt. 301.
7 Both the August and November grievances are unrelated to the cause of action before the Court. Gregory
Decl. Exh. A at 6.
8 “Keeplock is a form of disciplinary confinement segregating an inmate from other inmates and depriving him
of participation in normal prison activities.” Green v. Bauvi, 46 F.3s 189, 192 (2d Cir. 1995); N.Y. COMP.
CODES R. & REGS. tit. 7, § 301.6.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Rodriguez v. Cross, Not Reported in Fed. Supp. (2017)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2017 WL 2790530
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Edy RODRIGUEZ, Plaintiff,
v.
J. CROSS, Sergeant, Clinton Corr. Fac.; R.
Furnia, Sergeant, Clinton Corr. Fac.; G. Falcon,
Corr. Officer, Clinton Corr. Fac.; and J. Roberts,
Corr. Officer, Clinton Corr. Fac., Defendants.
9:15-CV-1079 (GTS/CFH)
|
Filed 06/27/2017
Attorneys and Law Firms
EDY RODRIGUEZ, No. 8951602009, Anna M. Kross
Center, 18-18 Hazen Street, East Elmhurst, New York 11370,
Pro Se.
HON. ERIC T. SCHNEIDERMAN, OF COUNSEL:
CHRISTOPHER J. HUMMEL, ESQ. Assistant Attorney
General, The Capitol Albany, New York 12224, Attorney
General for the State of New York, Counsel for Defendants.
DECISION and ORDER
HON. GLENN T. SUDDABY, Chief United States District
Judge
*1 Currently before the Court, in this pro se prisoner
civil rights action filed by Edy Rodriguez (“Plaintiff”)
against the four above-captioned employees of the New
York State Department of Corrections and Community
Supervision at Clinton Correctional Facility in Dannemora,
New York (“Defendants”), are Defendants' motion for
summary judgment seeking dismissal of Plaintiff’s Complaint
for failure to exhaust his administrative remedies, and United
States Magistrate Judge Christian F. Hummel’s Report-
Recommendation recommending that Defendants' motion be
granted and that Plaintiff’s Complaint be dismissed in its
entirety without prejudice. 1 (Dkt. Nos. 26, 40.) Plaintiff has
not filed an Objection to the Report-Recommendation despite
having received an extension of the filing deadline, which has
expired. (Dkt. No. 42.)
After carefully reviewing the relevant papers herein,
including Magistrate Judge Hummel’s thorough Report-
Recommendation, the Court can find no clear-error in
the Report-Recommendation. 2 Magistrate Judge Hummel
employed the proper standards, accurately recited the facts,
and reasonably applied the law to those facts. (Dkt. No.
40.) As a result, the Report-Recommendation is accepted
and adopted in its entirety for the reasons set forth therein;
Defendants' motion for summary judgment is granted; and
Plaintiff’s Complaint is dismissed in its entirety without
prejudice.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel’s Report-
Recommendation (Dkt. No. 40) is ACCEPTED and
ADOPTED in its entirety; and it is further
ORDERED that Defendants' motion for summary judgment
(Dkt. No. 26) is GRANTED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is
DISMISSED in its entirety without prejudice; and it is further
ORDERED that the Clerk of the Court shall enter Judgment
for Defendants and close this action.
All Citations
Not Reported in Fed. Supp., 2017 WL 2790530
Footnotes
1 The Court notes that Assistant Attorney General Christopher J. Hummel is of no relation to U.S. Magistrate
Judge Christian F. Hummel.
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2 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to
only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing
such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record
in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at
*1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s]
report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal
quotation marks omitted).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Ruiz v. Link, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 3020254
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Michael RUIZ, Plaintiff,
v.
P. LINK, J. Reyes, Patrick Squire, Michael Blot,
Deborah Macdonald, and John Does #1-3, Defendants.
No. 20-CV-235 (CS)
|
Signed July 29, 2022
Attorneys and Law Firms
Michael Ruiz, Comstock, New York, Pro Se Plaintiff.
Kathryn Martin, Assistant Attorney General, Office of the
Attorney General of the State of New York, White Plains,
New York, Counsel for Defendants.
OPINION & ORDER
Seibel, District Judge
*1 Before the Court is Defendants' motion for summary
judgment. (ECF No. 66.) For the reasons set forth below,
Defendants' motion is GRANTED.
I. BACKGROUND
The following facts are based on Defendants' Local Civil
Rule 56.1 Statement, (ECF No. 68 (“D's 56.1 Stmt.”)), and
supporting materials, and are undisputed unless otherwise
noted. 1
A. Facts
Plaintiff Michael Ruiz is incarcerated in the custody of the
New York State Department of Corrections and Community
Supervision (“DOCCS”). (D's 56.1 Stmt. ¶ 1.) Plaintiff's
claims arose while he was held at Green Haven Correctional
Facility. (Id. ¶ 2.) Plaintiff brings this lawsuit in connection
with an altercation in the prison yard on April 6, 2019 and
the medical treatment he received thereafter. (Id. ¶¶ 3-4.)
He alleges excessive force claims against Defendants Link,
Reyes, Squire and Blot, and a claim of deliberate indifference
to medical needs against Defendant MacDonald. 2
*2 The altercation and medical treatment at issue occurred
on April 6, 2019. (Ds' 56.1 Stmt. ¶¶ 3-4.) That same day,
Plaintiff was transferred from Green Haven to Sing Sing
Correctional Facility. (Id. ¶ 22.) While at Sing Sing, Plaintiff
filed a grievance, dated April 9, 2019, 3 alleging that on
April 6, 2019, correction officers used excessive force against
him, and medical staff failed to properly treat him. (D's 56.1
Stmt. ¶ 24; see ECF No. 71-6.) The grievance was denied
by the Sing Sing Superintendent on July 26, 2019. (D's 56.1
Stmt. ¶ 25; ECF No. 71-7.) Plaintiff testified at his deposition
that he did not receive a copy of the Superintendent's denial
until October 9, 2019, when he received a memo from Sing
Sing's Inmate Grievance Program (“IGP”) Supervisor, dated
August 30, 2019. (P's Depo. at 79:22-80:13; see ECF No.
65-6.) The letter informed Plaintiff that his grievance had
been answered on July 26, 2019 and forwarded to Plaintiff at
that time; the Supervisor included with the memo a copy of
the Superintendent's July 26 denial. (Id.) The bottom portion
of the Superintendent's denial letter is a form the inmate
can fill out if he wishes to appeal; it states, “[R]eturn this
copy to your Inmate Grievance Clerk.” (ECF No. 71-7.) 4
By the time Plaintiff received the letter and the copy of
the Superintendent's denial on October 9, Plaintiff had been
transferred out of Sing Sing and was being held in the Special
Housing Unit (“SHU”) at Elmira Correctional Facility. (Ds'
56.1 Stmt. ¶ 26; P's Depo. at 78:8-19, 78:25-79:21.) 5
DOCCS records reflect that the Central Office Review
Committee (“CORC”) never received any appeal of the
Superintendent's denial of Plaintiff's grievance. (D's 56.1
Stmt. ¶ 28.) Further, DOCCS records reflect that CORC did
not receive any correspondence from Plaintiff at all during
2019 or 2020. (Id. ¶ 29; see ECF No. 70 (“Seguin Decl.”)
¶ 13.) Plaintiff asserted in his deposition that he filled out
the appeal form on October 10, 2019 and “forwarded it to
CORC ... [b]y mail.” (P's Depo. at 80:24-81:4; see id. at
82:20-83:7.) Plaintiff did not specify the address to which he
mailed the appeal, but stated that he requested and received
the address from the law library. (Id. at 82:3-19.) Plaintiff did
not receive an acknowledgement of receipt or answer from
CORC. (Id. at 81:5-7.) After several months, he filed this
lawsuit. (Id. at 81:8-13.)
B. Procedural History
Plaintiff filed his original complaint on January 8, 2020,
bringing claims under 42 U.S.C. § 1983 against eight Green
Haven employees in their individual capacities for violations
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of the Eighth Amendment. (ECF No. 2.) The case was
reassigned to me on February 14, 2020. At a pre-motion
conference on August 28, 2020 in anticipation of a potential
motion to dismiss, I granted Plaintiff leave to amend his
Complaint. (See Minute Entry dated Aug. 28, 2020.) The
Amended Complaint was filed on September 25, 2020. (ECF
No. 30.) Defendants answered on April 8, 2021. (ECF No.
44.)
On May 11, 2021, I held a status conference and set a
discovery schedule, (ECF No. 51), which was extended twice,
(ECF Nos. 57, 60). At the close of discovery, Defendants
filed a pre-motion letter in anticipation of their motion for
summary judgment. (ECF No. 64.) 6 I held a pre-motion
conference on November 16, 2021 and set a briefing schedule
for Defendants' motion. (See Minute Entry dated Nov. 16,
2021.) On December 29, 2021, Defendants filed their motion
papers. (ECF Nos. 66-71.) Plaintiff's opposition was initially
due on January 27, 2022. Approximately one to two weeks
before the due date Plaintiff left two phone messages with my
chambers, requesting an extension of the briefing schedule
and permission to file a motion to obtain counsel. (See ECF
No. 74.) On January 19, 2022, I entered an Order extending
Plaintiff's time to respond to the motion to February 28, 2022,
and advising him of his right to file a motion asking the Court
to seek volunteer counsel. (Id.) On March 18, 2022, I received
a letter from Plaintiff (dated March 14, 2022), indicating that
his opposition was ready, and he just wanted permission to file
it late; I granted an extension to April 6, 2022, and noted there
would be no further extensions. (ECF No. 76.) On April 28,
2022, after no opposition was received, I deemed the motion
fully submitted. (ECF No. 78.)
II. LEGAL STANDARD
*3 Summary judgment is appropriate when “the movant
shows that 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). “[T]he dispute about a material fact
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). A fact is
“material” if it “might affect the outcome of the suit under
the governing law .... Factual disputes that are irrelevant
or unnecessary will not be counted.” Id. On a motion for
summary judgment, “[t]he evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in
his favor.” Id. at 255.
The movant bears the initial burden of demonstrating “the
absence of a genuine issue of material fact,” and, if satisfied,
the burden then shifts to the non-movant to “present evidence
sufficient to satisfy every element of the claim.” Holcomb
v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). “The
mere existence of a scintilla of evidence in support of the
[non-movant's] position will be insufficient; there must be
evidence on which the jury could reasonably find for the
[non-movant].” Anderson, 477 U.S. at 252. Moreover, the
non-movant “must do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986), and “may not rely on conclusory allegations or
unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express
Corp., 247 F.3d 423, 428 (2d Cir. 2001) (cleaned up).
“A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by ... citing to particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits
or declarations, stipulations ... admissions, interrogatory
answers, or other materials ....” Fed. R. Civ. P. 56(c)(1).
Where a declaration is used to support or oppose the motion,
it “must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the ...
declarant is competent to testify on the matters stated.” Id.
56(c)(4); see Major League Baseball Props., Inc. v. Salvino,
Inc., 542 F.3d 290, 310 (2d Cir. 2008). In the event that “a
party fails ... to properly address another party's assertion of
fact as required by Rule 56(c), the court may ... consider
the fact undisputed for purposes of the motion” or “grant
summary judgment if the motion and supporting materials
– including the facts considered undisputed – show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e).
Pro se litigants must be afforded “special solicitude,” Tracy
v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), “particularly
where motions for summary judgment are concerned,”
Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014).
Where, as here, the non-moving party fails to respond to
the movant's summary judgment motion, “the district court
may not grant the motion without first examining the moving
party's submission to determine if it has met its burden of
demonstrating that no material issue of fact remains for trial.”
Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,
244 (2d Cir. 2004) (cleaned up). “If the evidence submitted
in support of the summary judgment motion does not meet
the movant's burden of production, then summary judgment
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must be denied even if no opposing evidentiary matter is
presented.” Id. (cleaned up) (emphasis omitted).
III. DISCUSSION
A. Exhaustion Under the PLRA
The Prison Litigation Reform Act (“PLRA”) provides that
“[n]o action shall be brought with respect to prison conditions
under section 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available
are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is required
for “all inmate suits about prison life, whether they involve
general circumstances or particular episodes.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). The PLRA mandates that
a plaintiff use “all steps that the agency holds out, and do[ ]
so properly” – that is, in accordance with the applicable
agency rules. Amador v. Andrews, 655 F.3d 89, 96 (2d Cir.
2011) (cleaned up). Exhaustion of available administrative
remedies “must be complete prior to commencement of suit”
and “[t]he fact that a grievance is filed, or the process is
completed, subsequent to commencement of suit will not
salvage an otherwise premature filing.” Chalif v. Spitzer, No.
05-CV-1355, 2008 WL 1848650, at *13 (N.D.N.Y. Apr. 23,
2008) (cleaned up).
*4 For inmates in New York State prison, administrative
exhaustion requires compliance with DOCCS' three-tiered
IGP, in which (1) the inmate must file a grievance with the
Inmate Grievance Resolution Committee (“IGRC”) within
twenty-one days of the alleged occurrence, (2) the inmate
must then appeal an adverse decision by the IGRC to the
superintendent of the facility within seven days after receipt
of the IGRC's response, and (3) the inmate must then appeal
an adverse decision by the superintendent to the CORC within
seven days after receipt of the superintendent's response. See
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2022); McGee
v. McGready, No. 16-CV-4187, 2018 WL 2045094, at *2
(S.D.N.Y. Apr. 30, 2018).
“[W]hen a grievance concerns staff harassment, DOCCS
procedures provide for an expedited review that allows for
the complaint to bypass IGRC review and proceed before
the Superintendent in the first instance.” Jackson v. Jackson,
No. 16-CV-8516, 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16,
2021); see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8. Under
the expedited procedure, the Superintendent has twenty-five
days to respond to the grievance. N.Y. Comp. Codes R. &
Regs. tit. 7, § 701.8(f). If the Superintendent fails to respond
within twenty-five days, the inmate may appeal directly to
CORC. Id. § 701.8(g). If the Superintendent does respond,
the inmate has seven days from receipt of the response to
appeal to CORC. Id. § 701.8(h). The IGP Supervisor has
discretion to grant exceptions to the time limits for filing or
appealing grievances. See id. § 701.6(g). Whether or not the
Superintendent timely responds, the procedure to appeal a
determination of the Superintendent to CORC is to file “a
notice of decision to appeal (form #2133) with the inmate
grievance clerk.” Id. § 701.8(g)-(h). 7 Inmates who have been
transferred to a different facility can get their appeal to the
appropriate grievance clerk by “mail[ing] the signed appeal
form back to the IGP supervisor at the facility where the
grievance was originally filed.” Id. § 701.6(h)(2).
CORC is required to provide, through IGP staff, written
confirmation that an appeal has been received, and if the
inmate does not receive such confirmation within forty-five
days, he “should contact the IGP supervisor in writing to
confirm that the appeal was filed and transmitted to CORC.”
Id. § 701.5(d)(3)(i). The IGP requires CORC to respond to an
appeal within thirty days of receipt. Id. § 701.5(d)(3)(ii). If
CORC has received an appeal and fails to rule within those
thirty days, the inmate is considered to have exhausted his
administrative remedies and may file suit. Hayes v. Dahlke,
976 F.3d 259, 270 (2d Cir. 2020).
B. Plaintiff's Failure to Exhaust
Defendants have met their burden to demonstrate that
Plaintiff failed to follow IGP procedures with regard to
his CORC appeal and that CORC never received Plaintiff's
appeal. Accordingly, Plaintiff failed to “properly” exhaust
administrative remedies prior to filing suit. See Amador, 655
F.3d at 96.
Plaintiff testified that once he received the Superintendent's
adverse decision on October 9, 2021, he filled out the appeal
statement and “forwarded it to CORC ... [b]y mail.” (P's Depo.
at 80:24-81:4.) He never received confirmation that his appeal
was received or any response from CORC, and after a few
months he filed this lawsuit. (Id. at 81:8-13.)
The IGP required Plaintiff to forward the appeal to the Inmate
Grievance Clerk. N.Y. Comp. Codes R. & Regs. tit. 7, §
701.8(g)-(h). The form at the bottom of the Superintendent's
letter also notified Plaintiff that the appeal to CORC had to
be transmitted via the Inmate Grievance Clerk. (See ECF No.
71-7.) The IGP specifically provides that Plaintiff, having
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been transferred to a different facility from that in which
he originally filed his grievance, should get his appeal to
the proper Inmate Grievance Clerk by “mail[ing] the signed
appeal form back to the IGP supervisor at the facility where
the grievance was originally filed.” Id. § 701.6(h)(2). Nothing
in the record indicates that Plaintiff followed this procedure;
rather, it appears he tried to mail his appeal directly to CORC,
and CORC never received the document. (See Seguin Decl. ¶¶
12-13 (CORC never received appeal of Plaintiff's grievance,
nor did it receive any other correspondence from Plaintiff
during 2019 or 2020); ECF No. 71-8 (CORC records showing
no receipt of appeal)).
*5 Accordingly, Plaintiff failed to properly follow
the grievance procedure and has failed to exhaust his
administrative remedies. See Valverde v. Folks, No. 19-
CV-8080, 2022 WL 836310, at *6 (S.D.N.Y. Mar. 21,
2022) (“Plaintiff did not properly comply with [the] prison
grievance procedural rules. Plaintiff ... mailed his appeal
statement directly to CORC. However, to appeal a decision
denying a grievance, an inmate must submit the appeal,
not directly to CORC, but to the grievance supervisor of
the facility where the grievance was originally filed for
forwarding to that facility's grievance clerk.”); Wilkinson v.
Banks, No. 2-CV-361, 2007 WL 2693636, at *6 (W.D.N.Y.
Sep. 10, 2007) (“[N]o dispute exists that [the pro se plaintiff]
did not follow correct procedure in attempting to appeal that
grievance to CORC. He did not file his appeal with the Inmate
Grievance Clerk as required by the regulations, but rather
mailed it directly to CORC.”) (cleaned up).
C. Availability of Administrative Remedies
Although the Supreme Court has deemed exhaustion
mandatory, there are circumstances under which
administrative remedies may be deemed “unavailable” to
an inmate, such that an inmate is not required to exhaust.
Ross v. Blake, 578 U.S. 632, 642 (2016). The Supreme
Court identified three circumstances where administrative
remedies may be unavailable. See id. at 643-44. 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. at
643. Second, “an administrative scheme might be so opaque
that it becomes, practically speaking, incapable of use.” Id.
Third, administrative remedies are unavailable where “prison
administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or
intimidation.” Id. at 644. “If the defendant has met its burden
of establishing the existence and applicability of the grievance
policy, the plaintiff bears the burden of establishing de facto
unavailability.” Saeli v. Chautauqua County, 36 F.4th 445,
453 (2d Cir. 2022) (emphasis in original).
Plaintiff has submitted no opposition to the instant motion
and has not argued that administrative procedures were
unavailable to him. See Dowling v. Barkman, No. 17-
CV-647, 2019 WL 7971868, at *5 (N.D.N.Y. Dec. 20,
2019) (“Given Plaintiff's failure to oppose the Motion, no
basis appears on the record for concluding that DOCCS'
grievance procedure was unavailable to him.”), report and
recommendation adopted sub nom. Dowling v. Schleicher,
2020 WL 103480 (N.D.N.Y. Jan. 8, 2020). Even if that were
not the case, the record does not reflect that any of the above-
listed circumstances apply.
First, nothing in the record suggests that Plaintiff did not
receive a response from CORC because the grievance process
was operating as a “dead end” – rather, it appears that CORC
never received Plaintiff's appeal because of Plaintiff's failure
to send the appeal to the appropriate official. (See P's Depo. at
80:24-81:4; Seguin Decl. ¶¶ 12-13; ECF No. 71-8.) Similarly,
the record is bereft of evidence that the IGP is unavailable to
inmates generally. See White v. Veile, 709 F. App'x 35, 38 (2d
Cir. 2017) (summary order) (affirming summary judgment
for failure to exhaust administrative remedies where plaintiff
did not “present[ ] any evidence about the outcomes in the
grievance system in general” or “show[ ] that prison officials
are consistently unwilling to grant relief”).
Second, as set out above, the relevant procedures are not
opaque. The IGP clearly sets out the process for appealing
a grievance to CORC through the Inmate Grievance Clerk –
including the instructions under § 701.6(h)(2) for an inmate
who has been transferred from one facility to another to send
an appeal to the appropriate facility's IGP Supervisor. Plaintiff
testified that he is familiar with the grievance process, (see
P's Depo. at 18:3-19:6), and the Superintendent's denial stated
that the appeal to CORC had to go through the Inmate
Grievance Clerk, (see ECF No. 71-7).
*6 Third, while there is some evidence in the record that
Plaintiff sought information from the “law library officer”
while he was in the SHU at Elmira and appears to have
been given a mailing address for CORC, 8 this fact alone
is insufficient to establish that a prison official thwarted his
ability to successfully appeal to CORC. Plaintiff has not
suggested that he asked how to appeal and was told to mail his
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appeal to CORC, or that he asked the law library officer for
anything other than the address of CORC. There is simply no
evidence of machination, intimidation or misrepresentation.
That the breakdown of the grievance procedure here was
due to Plaintiff's failure to follow it, rather than to its
unavailability, is highlighted by the fact that when Plaintiff
did not receive confirmation that CORC was in possession
of his appeal within the forty-five days envisioned by the
regulations, instead of following the IGP and writing to Sing
Sing's IGP Supervisor – an official with whom he had recently
communicated, (see P's Depo. at 79:22-80:13, 81:14-21) –
to confirm that the appeal was filed, see N.Y. Comp. Codes
R. & Regs. tit. 7, § 701.5(d)(3)(i), he simply waited a few
months and then filed this lawsuit. (P's Depo. at 79:25-80:8,
81:5-13). 9
In short, “[g]iven the lack of evidence that Plaintiff's appeal
to CORC was ever filed, or ever followed up on, it is
not that the full scope of administrative remedies was not
available to Plaintiff – rather, Plaintiff failed to fully exhaust
the administrative remedies available to him.” Houston
v. Coveny, No. 14-CV-6609, 2020 WL 2494439, at *3
(W.D.N.Y. May 14, 2020); see Litchmore v. Williams, No. 11-
CV-7546, 2013 WL 3975956, at *6 (S.D.N.Y. Aug. 5, 2013)
(no “sufficient basis in the record to find that administrative
remedies were unavailable” where, among other things, there
was “no evidence here that the plaintiff's appeal was actually
mailed, intercepted, or ignored” and “DOCCS has no record
of any appeal filed with CORC”). 10
IV. CONCLUSION
For the foregoing reasons, Defendants' motion for summary
judgment is GRANTED. The Clerk of Court is respectfully
directed to terminate the pending motion, (ECF No. 83), enter
judgment for Defendants, and close the case.
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2022 WL 3020254
Footnotes
1 Plaintiff did not file a responsive Rule 56.1 Statement or any papers in opposition to this motion. Local
Civil Rule 56.1 requires that the party opposing a motion for summary judgment submit a counterstatement
responding to the moving party's statement of material facts, indicating which facts are admitted and which
the opposing party contends are in dispute and require a trial. L.R. 56.1(b). Under the Local Rule, “[i]f the
opposing party ... fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact
will be deemed admitted.” Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003) (citing L.R. 56.1(c)).
Pro se litigants are not excused from this requirement. SEC v. Tecumseh Holdings Corp., 765 F. Supp. 2d
340, 344 n.4 (S.D.N.Y. 2011). As Defendants served Plaintiff with the requisite notice pursuant to Local Civil
Rule 56.2, (see ECF No. 72), I have discretion to consider any properly supported facts in Defendants' Local
Civil Rule 56.1 Statement admitted. (The Court will send Plaintiff copies of any unpublished decisions cited
in this Opinion and Order.) But granting Plaintiff solicitude, I have considered his deposition testimony, (ECF
No. 71-2 (“P's Depo.”)), statements in his complaint and amended complaint, both of which are sworn under
penalty of perjury pursuant to 28 U.S.C. § 1746, (ECF Nos. 2, 30), and his letter in response to Defendants'
pre-motion letter, (ECF No. 65). See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]hile a
court is not required to consider what the parties fail to point out in their Local Rule 56.1 statements, it may
in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed
to file such a statement.”) (cleaned up).
2 Defendants move for summary judgment on all of Plaintiff's claims on the ground that he failed to exhaust his
administrative remedies, and in the alternative for summary judgment only on Plaintiff's deliberate medical
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indifference claim. (See ECF No. 67 at 1.) Because I resolve the motion on the basis of failure to exhaust
administrative remedies, I do not describe the specific allegations further.
3 Defendants state in their Rule 56.1 statement that Plaintiff's grievance is dated April 22, 2019, but that is the
date on which the grievance was stamped as received by the facility. (See ECF No. 71-6.)
4 The form is captioned “Appeal Statement,” and below the caption it reads: “If you wish to refer the above
decision of the Superintendent please sign below and return this copy to your Inmate Grievance Clerk. You
have seven (7) calendar days from your receipt of this notice to file your appeal.* Please state why you are
appealing this decision to C.O.R.C.” The asterisk leads to a statement about how to request an exception
to the time limit. Below the language quoted above are several lines for the inmate to explain why he is
appealing, and then signature lines for the inmate and the Grievance Clerk.
5 Plaintiff notes that it is possible he had not previously received the Superintendent's denial because much of
the time he was at Sing Sing he was housed in the Office of Mental Health (“OMH”) unit after several suicide
attempts between June and September of 2019. (P's Depo. at 78:5-19.)
6 Plaintiff responded by letter dated November 8, 2021, but that letter was not received and docketed until
November 24, 2021. (See ECF No. 65.)
7 The procedure to appeal to CORC under the normal, non-expedited procedures is the same. See N.Y. Comp.
Codes R. & Regs. tit. 7, § 701.5(d)(1)(i).
8 Plaintiff testified as his deposition as follows:
[Q.] So how do you know where to send the grievance appeal? ...
A. You can actually get the address from the law library that they provide in the facility. They have all the
information of addresses, names, stuff like that.
Q. And is that what you did? You went to the law library?
A. Yes, ma'am. I was in the special housing unit at the time, so the law library officer will actually come to
you and take your request and then return the request by the next day.
(P's Depo. at 82:6-19.)
9 Plaintiff's response to the question whether he ever followed up with CORC – that he “tried checking [the
appeal], but it had already been months they hadn't responded, so I proceeded with my civil Complaint,” (P's
Depo. at 81:8-13) – not only contains no information about what he did to check, but suggests at most that
he asked about the status of his appeal at or about the same time that he filed this lawsuit.
10 Having so found, I need not and do not address the merits of Plaintiff's medical indifference claim.
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Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2009 WL 3672105
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
Walter RUSYNIAK; and Anthony Rusyniak, Plaintiffs,
v.
Ena Paola GENSINI; Gunilla De Montaigu;
and Concha Futura, S.A., Defendants.
No. 5:07–CV–0279 (GTS/GHL).
|
Oct. 30, 2009.
Attorneys and Law Firms
Costello, Cooney & Fearon, PLLC, Robert M. Smith, Esq.,
Kristen L. Pickard, Esq., of Counsel, Syracuse, NY, for
Plaintiffs.
Hiscock & Barclay, LLP, Robert A. Barrer, Esq., of Counsel,
Syracuse, NY, for Defendants Gunilla De Montaigu and
Concha Futura, S.A.
Greene, Hershdorfer & Sharpe, Victor J. Hershdorfer, Esq., of
Counsel, Syracuse, NY, for Defendant Ena Paola Gensini.
MEMORANDUM DECISION and ORDER
GLENN T. SUDDABY, District Judge.
*1 Currently pending before the Court in the above-
captioned action is a motion by Defendants containing two
alternative requests for relief: (1) a request for reconsideration
of Part III.D.5 of the Court's Decision and Order of May
5, 2009, denying Defendants' request for dismissal of all of
Plaintiffs' claims due to the doctrine of forum non conveniens;
and (2) a request for dismissal of the First Cause of Action
of Plaintiffs' Third Amended Complaint (asserting a claim of
violation of Panama law) as barred by the three-year statute of
limitations set forth in the certified translation of Article 1652
of the Panamanian Code. (Dkt. No. 61.) For the reasons set
forth below, Defendants' motion is granted in part, and denied
in part.
I. REQUEST FOR RECONSIDERATION
To the extent that Defendants' motion requests
reconsideration of the Court's decision to denying their
request for dismissal of all of Plaintiffs' claims due to the
doctrine of forum non conveniens, that motion is untimely.
Defendants' motion was filed on June 8, 2009. (Dkt. No.
61.) The Order of which reconsideration was sought was
entered on May 5, 2009. (Dkt. No. 56.) See N.D.N.Y.
L.R. 7.1(g) (setting ten-day deadline for motions for
reconsideration). Defendants' attempt to characterize the
Order of which reconsideration is sought as being the Court's
Text Order of May 29, 2009, is unconvincing. That Text
Order merely indicates the extent to which Plaintiffs' signed
Third Amended Complaint fails to comport with the Court's
Decision and Order of May 5, 2009 (and was issued in
response to Plaintiffs' request for guidance). Even liberally
construed, Defendants' motion for reconsideration expressly
and repeatedly challenges the substance of the Court's Order
of May 5, 2009 (specifically, Part III.D.5. thereof), and only
that Order. (See, e.g., Dkt. No. 61, Part 2, ¶ 4; Dkt. No. 61,
Part 4, Points II and III.)
In any event, even if the Court were to consider the
merits of Defendants' motion for reconsideration, the Court
would deny that motion as without cause: there has been
no intervening change of controlling law, no previously
unavailable evidence, and there exists no clear error of law or
manifest injustice with regard to the relevant portion of the
prior decision in question.
For these reasons, Defendants' request for reconsideration is
denied.
II. REQUEST FOR DISMISSAL OF FIRST CAUSE OF
ACTION
To the extent that Defendants' motion alternatively requests
the dismissal of the First Cause of Action of Plaintiffs'
Third Amended Complaint (asserting a claim of violation of
Panama law) as barred by the three-year statute of limitations
set forth in the certified translation of Article 1652 of the
Panamanian Code, that motion is granted.
Defendants are correct that Plaintiffs failed, in their response
papers, to oppose this request. (See Dkt. No. 63.) The closest
that Plaintiffs come to opposing this request is when, in a
supplemental letter request, they (correctly) point out that
Defendants have improperly broadened the target of their
Panamanian-statute-of-limitations argument from Plaintiffs'
First Cause of Action to all of Plaintiffs' causes of action.
(Dkt. No. 66; see also Dkt. No. 61, Part 4, at 7–8.) As a
result of Plaintiffs' failure to address Defendants' argument
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Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
regarding Plaintiffs' First Cause of Action, Defendants'
burden on this motion is somewhat lightened with regard to
that cause of action. 1
*2 After carefully reviewing the parties' motion papers, and
Plaintiffs' Third Amended Complaint, the Court finds that
Defendants have met their lightened burden on their motion
to dismiss Plaintiff's First Cause of Action. The Court reaches
this conclusion based on substance of the certified translation
provided by Defendants (i.e., the certified translation of
Article 1652 of the Commercial Code of the Republic of
Panama). (Dkt. No. 61, Part 3.) The Court reaches this
conclusion also based on the reasons stated in Part III.D.7.a.
of the Court's Order of May 5, 2009. (See Dkt. No. 56, at 44–
47.) See also Rusyniak v. Gensini, 629 F.Supp.2d 203, 231–
33 (N.D.N.Y.2009) (Suddaby, J.).
For these reasons, Defendants' request to dismiss Plaintiff's
First Cause of Action is granted.
ACCORDINGLY, it is
ORDERED that Defendants' motion (Dkt. No. 61) is
GRANTED in part, and DENIED in part, in accordance
with the above Decision and Order; and it is further
ORDERED that Defendants' motion for reconsideration of
the May 5, 2009 Decision and Order is DENIED, however,
the First Cause of Action of Plaintiffs' Third Amended
Complaint (Dkt. No. 58) is DISMISSED as barred by the
three-year statute of limitations set forth in the certified
translation of Article 1652 of the Panamanian Code; and it is
further
ORDERED that counsel for all parties are directed to attend
an in-person pretrial conference on NOVEMBER 19, 2009
at 2:00 p.m. in Judge Suddaby's chambers in Syracuse, New
York, at which counsel are directed to appear with settlement
authority.
All Citations
Not Reported in F.Supp.2d, 2009 WL 3672105
Footnotes
1 See Cossey v. David, 04–CV–1501, 2007 WL 3171819, at *7 (N.D.N.Y. Oct. 29, 2007) (Lowe, M.J. adopted
by Scullin, J.) (noting that, where plaintiffs do not respond to defendants' argument made in their summary
judgment motion, plaintiffs are deemed to have consented to defendants' argument, and thus defendants
must only satisfy “their modest burden of demonstrating entitlement to the relief requested through that
argument”); Saunders v. Ricks, 03–CV–598, 2006 WL 3051792, at *9 (N.D.N.Y. Oct. 18, 2006) (Lowe, M.J.
adopted by Hurd, J.) (“By failing to respond to Defendants' first argument ... Plaintiff may be deemed to
have consented to that argument under Local Rule of Practice 7.1(b)(3). Thus, Plaintiff's claim against those
Defendants may be dismissed on that ground alone [provided that] ... Defendants have met their modest
threshold burden to demonstrate entitlement to the relief requested in their motion for summary judgment.”);
Beers v. GMC, 97–CV–0482, 1999 U.S. Dist. LEXIS 12285, at *27–31 (N.D.N.Y. March 17, 1999) (McCurn,
J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their
motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants
with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3] ).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 265 of 290

Sage v. HSBC Bank USA National Association as Trustee..., Not Reported in Fed....
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 1062590
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Gregory SAGE, Plaintiff,
v.
HSBC BANK USA NATIONAL ASSOCIATION,
AS TRUSTEE in Trust FOR ACE SECURITIES
CORP., HOME EQUITY LOAN TRUST
SERIES 2006-0P2 ASSET-BACKED PASS-
THROUGH CERTIFICATES, Defendant.
1:18-CV-1494 (GTS/DJS)
|
Signed 03/19/2021
Attorneys and Law Firms
GREGORY SAGE, 60 Terwilliger Road, Kerhonkson, NY
12446, Plaintiff, Pro Se.
OF COUNSEL: DAVID S. YOHAY, ESQ., HOUSER LLP,
60 East 42nd Street, Suite 2330, New York, NY 10165,
Counsel for Defendant.
DECISION and ORDER
GLENN T. SUDDABY, Chief United States District Judge
*1 Currently before the Court, in this action under the Truth
in Lending Act filed by Gregory Sage (“Plaintiff”) against
HSBC Bank USA National Association (“Defendant”), is
Defendant's motion for summary judgment. (Dkt. No. 69.)
For the reasons set forth below, Defendant's motion is granted.
I. RELEVANT BACKGROUND
A. Plaintiff's Complaint
Generally, in his Complaint, Plaintiff claims that Defendant
failed to notify him when his mortgage was transferred to
Defendant as required by 15 U.S.C. § 1641(g). (Dkt. No. 2
[Plf.’s Compl.].) More specifically, Plaintiff alleges that (a)
this assignment was not filed with the Ulster County Clerk's
Office, and he was unaware of the assignment until February
2018, and (b) because a previous transfer of his mortgage
in 2009 was not valid in that it included falsified signatures,
Defendant was required to notify him regarding the more-
recent transfer underlying his claim. (Id., at ¶¶ 4-6, 8-11.)
B. Undisputed Material Facts
Despite having been repeatedly notified of the consequences
of doing so, 1 Plaintiff has violated Local Rule 56.1(b)
(formerly Local Rule 7.1[a][3]) of the Court's Local Rules of
Practice, which requires opponents of a motion for summary
judgment to file a response expressly admitting or denying
(in matching numbered paragraphs and with appropriate
record citations) each of the factual assertions in the movant's
Statement of Material Facts. (Compare Dkt. No. 69, Attach.
2 [Def.’s Rule 56.1(a) Statement] with Dkt. No. 82, at 27-36
[Plf.’s Response to Def.’s Motion].) 2 On this ground alone,
the Court may deem Defendant's properly supported factual
assertions as having been admitted by Plaintiff. The Court has
no duty to sua sponte sift through the record to assure itself
there is no genuine dispute of material fact. 3
*2 However, in the interest of thoroughness, the Court will
recite the material facts that, based on its review of the record,
it finds to be both established by Defendant and undisputed
by the record.
1. Plaintiff received a loan in the original amount of
$200,000 (the “Loan”) from Option One Mortgage
Corporation, which was memorialized by a note, dated
May 5, 2006 (the “Note”).
2. The Loan was secured by a mortgage on the premises
commonly known as 60 Terwilliger Road, Kerhonkson,
New York 12446 (the “Property”), dated May 5, 2006,
given by Defendant to Option One (the “Mortgage”).
3. The Mortgage was recorded by the Ulster County Clerk
on May 16, 2006, as instrument number 2006-00012658.
4. The Note was repayable as follows: the sum of $1,523.68
on July 1, 2006, and a like sum each and every month
thereafter June 1, 2008, at which time the monthly
payment amount is to be determined by the interest rate
prevailing on that day and the first day of every sixth
month thereafter until the maturity date of June 1, 2036,
at which time the entire residue should become due and
payable.
5. Pursuant to the Pooling and Servicing Agreement of
October 1, 2006, and the accompanying Mortgage Loan
Schedule, the Loan was conveyed to Defendant.
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6. Defendant has continuously owned the Loan since its
acquisition in 2006.
7. Defendant has never sold or otherwise transferred or
assigned the Loan to a new creditor.
8. Pursuant to the Custodial Agreement of October 1, 2006,
Wells Fargo Bank, N.A. (“Wells Fargo”) is Defendant's
document custodian.
9. Between May 5, 2006, and May 18, 2006, Jamie
Ellis, Assistant Secretary for Option One, endorsed the
original Note in blank by signing an allonge that was
firmly affixed to the original Note.
10. On June 16, 2006, the original “wet ink” Note
with a firmly affixed allonge bearing Option One's
endorsement in blank was delivered to Wells Fargo, as
Defendant's custodian.
11. Defendant, through Wells Fargo, has maintained
continuous physical possession of the original “wet ink”
Note, endorsed in blank, since June 16, 2006.
12. The Mortgage was also assigned to the Trust, as
memorialized by the assignment of mortgage, dated
April 20, 2009, and recorded by the Ulster county Clerk
on April 24, 2009, as instrument number 2009-00006019
(the “2009 Assignment of Mortgage”).
13. Plaintiff breached his obligations pursuant to the Note
and the Mortgage by failing to tender the installment
that became due and payable on August 1, 2008, and
subsequent installments.
14. As of August 18, 2020, no payment has been made on
the Loan since Plaintiff's default on August 1, 2008.
15. During this period, Defendant has paid the taxes and
insurance on the Property.
16. On April 23, 2009, Defendant commenced an action in
the Supreme Court of the State of New York, County of
Ulster to foreclose the Mortgage due to Plaintiff's default
under the Loan (the “Foreclosure Action”).
17. Defendant's foreclosure counsel attempted to record a
corrective assignment of mortgage, dated July 30, 2015.
18. On August 19, 2015, the Ulster County Clerk
rejected and refused to record the 2015 assignment of
mortgage upon finding that the 2009 assignment of
mortgage was a “good/clean assignment along with the
acknowledgment.”
*3 19. On August 3, 2017, Defendant moved for a
judgment of foreclosure and sale in the Foreclosure
Action. Defendant's motion consisted of more than 100
pages.
20. Defendant annexed a copy of the 2015 assignment of
mortgage to its August 3, 2017, motion.
21. On August 11, 2017, Defendant mailed the motion,
including the 2015 assignment of mortgage, to Plaintiff
at the Property.
22. Defendant obtained a judgment of foreclosure and sale,
dated October 26, 2017, and filed it with the Ulster
County Clerk's Office on October 30, 2017.
23. On February 1, 2018, Plaintiff presented a proposed
order to show cause in the foreclosure action for a motion
to vacate the judgment of foreclosure and sale on the
basis of the 2015 assignment of mortgage and other
grounds.
24. Although Plaintiff briefly mentioned a failure to serve
as required under CPLR § 4313 in his order to show
cause, Plaintiff failed to contend in his motion to vacate
that he was not served or timely served with Defendant's
motion for a judgment of foreclosure and sale.
25. On April 5, 2018, the Hon. Christopher E. Cahill,
J.S.C., determined that there was “no viable basis
to vacate the Judgment of Foreclosure” and denied
Plaintiff's motion.
26. As of the filing of this action, Plaintiff has filed nine
motions and four notices of appeal in the Foreclosure
action.
27. On November 16, 2018, Plaintiff commenced the
current action in the Supreme Court of Ulster County.
28. Plaintiff verified the contents of the Complaint in a
sworn verification accompanying the Complaint. The
Complaint purports to state one claim for a violation
of the “notice of new creditor” provision of the federal
Truth in Lending Act (“TILA”), 15 U.S.C. § 1641(g).
29. Plaintiff's Complaint alleges that Defendant failed to
properly notify him of the 2015 assignment of mortgage
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and that he first received the 2015 Assignment of
Mortgage in the mail in February 2018.
30. On December 27, 2018, Defendant removed this action
to the United States District Court for the Northern
District of New York on the basis of federal-question
jurisdiction pursuant to 28 U.S.C. § 1331.
31. On November 26, 2019, Plaintiff attended the Rule 16
conference before Magistrate Judge Daniel J. Stewart in
this action.
32. At the Rule 16 conference, Plaintiff represented to
Magistrate Judge Stewart that he has “been searching
[for] ways to open up discovery again” in the
Foreclosure action and that he is on a “fishing
expedition” with this action. (Dkt. No. 69, Attach. 28, at
4-5.)
33. At the Rule 16 conference, Plaintiff also stated as
follows:
So in – my main goal here, okay, is – of course, if there
was any way that I could just rape the bank for money
right now – what I really want is I want this case, not this
case in front of your court, but eventually, okay, I want
this case to make it back down to Ulster County – in the
Supreme Court of Ulster County so that I can have a trial
and I can present evidence which has been denied to me
now for ten years.
34. On March 13, 2020, Plaintiff appeared for a deposition
in this action.
35. At his deposition, Plaintiff testified that he was not at
all concerned about the outcome of this action because
the true goal was to defeat the Foreclosure action.
*4 36. Plaintiff further testified that he did not first
become aware of the 2015 assignment of mortgage until
August 2018 or August 2019.
Familiarity with the remaining undisputed material facts of
this action, as well as the disputed material facts is assumed in
this Decision and Order, which (again) is intended primarily
for review by the parties.
C. Parties Briefing on Defendant's Motion for
Summary Judgment
1. Defendant's Memorandum of Law
Generally, in its motion for summary judgment, Defendant
asserts three alternative arguments. (Dkt. No. 69, Attach. 1
[Def.’s Memo. of Law].) First, Defendant argues that Plaintiff
fails to establish a claim under TILA, because the 2015
assignment of mortgage did not assign the debt obligation
to Defendant. (Id. at 6-10.) More specifically, Defendant
argues that the 2015 assignment of mortgage was a corrective
assignment of Plaintiff's mortgage (and is thus not subject to
the notice provision of 18 U.S.C. § 1641[g]) because it did not
actually effectuate a new sale, transfer, or assignment. (Id.)
Second, Defendant argues that, in any event, Plaintiff's TILA
claim is time-barred by the statute's one-year statute of
limitations. (Id. at 15-21.) In particular, Defendant argues
as follows: (a) Plaintiff's claim accrued on August 30, 2015
(31 days after the execution of the corrective assignment
on July 30, 2015), and Plaintiff did not file his Complaint
until November 16, 2018; (b) equitable tolling does not
apply because Plaintiff has not alleged any act of fraudulent
concealment by Defendant apart from the mere failure to
give notice, let alone conduct sufficient to meet Fed. R.
Civ. P. 9(b); and (c) even assuming Plaintiff has sufficiently
pled fraudulent concealment, the doctrine of equitable tolling
would still not render his claim timely, because he was
made aware of the corrective assignment as early as August
2017 when Defendant served its motion for judgment of
foreclosure and sale in the state court action, Plaintiff did not
file his Complaint until November 2018, and he has failed to
rebut the presumption of proper service. (Id.)
Third, in the alternative, Defendant argues that Plaintiff's
claim is barred by the doctrine of res judicata, because
the foreclosure action involved him, an adjudication on the
merits, and his TILA claim could have been raised in the
foreclosure action. (Id. at 21-25.) Specifically, Defendant
argues as follows: (a) the operative facts underlying the state
court foreclosure action and those underlying this action
are part of the same transaction or factual grouping (and
indeed Plaintiff previously argued in the state court action that
the corrective assignment constituted a standing defect that
merited vacation of the judgment of foreclosure and sale);
and (b) Plaintiff's TILA claim arose before the entry of the
judgment of foreclosure action and is an improper, collateral
attack on the judgment of foreclosure sale. (Id.)
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2. Plaintiff's Opposition Memorandum of Law
Generally, in opposition to Defendant's motion, Plaintiff
asserts four arguments. (Dkt. No. 82, at 1-26 [Pl.’s Opp'n
Memo. of Law].) First, Plaintiff argues that 15 U.S.C.
§ 1641(g) applies to Defendant's assignment of mortgage
because the plain language of the statute requires disclosures
when a mortgage loan is “sold or otherwise transferred or
assigned to a third party....” (Id. at 11-13.)
*5 Second, Plaintiff argues that the statute of limitations did
not begin to run in 2015, because he first received notice of
the 2015 assignment of mortgage in 2018, when Defendant
first “attached it as an exhibit to a motion.” (Id. at 14-20.)
Third, Plaintiff argues that the doctrine of res judicata should
not apply to his case, because his foreclosure action was
dismissed because he did not raise an objection or defense
of lack of standing in his responsive pleading or pre-answer
motion to dismiss, and the New York State Legislature
recently passed a statute, N.Y. RPAPL § 1302-a, that states a
party does not waive any objection or defense based on the
lack of standing in a foreclosure action if that party fails to
raise the objection or defense in a responsive pleading or pre-
answer motion to dismiss, thereby permitting the Court to
ignore the doctrine of res judicata to allow a party to benefit
from an intervening change in the law. (Id. at 20-21.)
Fourth, and finally, Plaintiff argues that there are triable
questions of fact precluding summary judgment, because (a)
the question of when Ms. Ellis signed the allonge as an
“assistant secretary” is critical to determining its merit, (b)
there are inconsistencies in Defendant's accounting of when
Ms. Ellis signed the indorsement, (c) there are inconsistencies
in the description of when it was received, and (d) there are
concerns about the purported mortgage assignment. (Id. at
22-25.)
3. Defendant's Reply Memorandum of Law
Generally, in reply to Plaintiff's opposition, Defendant asserts
four arguments. (Dkt. No. 86 [Def.’s Reply Memo. of Law].)
First, Defendant argues that the Court should deem admitted
each fact set forth in its Statement of Material Facts due to
Plaintiff's failure to comply with Local Rule 7.1(a)(3) (now
Local Rule 56.1). (Id. at 6-9.)
Second, Defendant argues that Plaintiff has failed to rebut
Defendant's prima facie showing that there is no genuine
dispute regarding Plaintiff's TILA claim, because (a) the
law is clear that an assignment of the mortgage without a
concurrent assignment of the debt obligation does not give
rise to liability for a violation of 15 U.S.C. § 1641(g), and
(b) Plaintiff has not presented competent evidence to refute
Defendant's prima facie showing as to when the original note
was negotiated in favor of Defendant. (Id. at 9-15.)
Third, Defendant argues that Plaintiff has failed to rebut
Defendant's prima facie showing that there is no genuine
dispute that the TILA claim is time-barred by the one-year
statute of limitations, because (a) Plaintiff failed to rebut
Defendant's prima facie showing that equitable tolling is not
available, and (b) Plaintiff has not rebutted Defendant's prima
facie showing that his TILA claim is still untimely even if the
statute of limitations was equitably tolled. (Id. at 15-20.)
Fourth, Defendant argues that Plaintiff failed to rebut
Defendant's prima facie showing that there is no genuine
dispute that Plaintiff's TILA claim is barred by the doctrine
of res judicata, because Plaintiff's TILA claim in this action
is undeniably based on the same set of facts as his defenses
in the foreclosure action, Plaintiff had an opportunity to raise
the TILA claim in the foreclosure action but failed to do
so, and that, even if N.Y. RPAPL § 1302-a was relevant
and retroactively applied to the facts of this case, it would
nevertheless fail to strip the Judgment of Foreclosure and
Sale of its preclusive effect with respect to any previously
waived objections or defenses other than lack of standing. (Id.
at 20-21.)
II. RELEVANT LEGAL STANDARD
*6 Under Fed. R. Civ. P. 56, summary judgment is warranted
if “the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is
“genuine” if “the [record] evidence is such that a reasonable
jury could return a verdict for the [non-movant].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986). 4 As for the materiality requirement, a
dispute of fact is “material” if it “might affect the outcome of
the suit under the governing law.... Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson, 477
U.S. at 248, 106 S.Ct. 2505.
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In determining whether a genuine issue of material fact exists,
the Court must resolve all ambiguities and draw all reasonable
inferences against the movant. Anderson, 477 U.S. at 255,
106 S.Ct. 2505. In addition, “[the movant] bears the initial
responsibility of informing the district court of the basis for
its motion, and identifying those portions of the ... [record]
which it believes demonstrate[s] the absence of any genuine
issue of material fact.” Celotex v. Catrett, 477 U.S. 317,
323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However,
when the movant has met its initial burden, the non-movant
must come forward with specific facts showing a genuine
issue of material fact for trial. Fed. R. Civ. P. 56(a), (c), (e). 5
Implied in the above-stated burden-shifting standard is the
fact that, where a non-movant willfully fails to respond to a
motion for summary judgment, a district court has no duty
to perform an independent review of the record to find proof
of a factual dispute–even if that non-movant is proceeding
pro se. 6 (This is because the Court extends special solicitude
to the pro se litigant largely by ensuring that he or she has
received notice of the consequences of failing to properly
respond to the motion for summary judgment.) 7 As has often
been recognized by both the Supreme Court and Second
Circuit, even pro se litigants must obey a district court's
procedural rules. 8
Of course, when a non-movant willfully fails to respond to a
motion for summary judgment, “[t]he fact that there has been
no [such] response ... does not ... [by itself] mean that the
motion is to be granted automatically.” Champion v. Artuz,
76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above,
the Court must assure itself that, based on the undisputed
material facts, the law indeed warrants judgment for the
movant. Champion, 76 F.3d at 486; Allen v. Comprehensive
Analytical Group, Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y.
2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non-
movant's failure to respond to the motion does is lighten the
movant's burden.
*7 For these reasons, this Court has often enforced Local
Rule 56.1 (previously Local Rule 7.1[a][3]) by deeming facts
set forth in a movant's statement of material facts to be
admitted, where (1) those facts are supported by evidence
in the record, and (2) the non-movant has willfully failed to
properly respond to that statement, 9 even where the non-
movant was proceeding pro se. 10
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 of law under Local Rule 7.1(a)(3). 11 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 that the argument possess
facial merit, which has appropriately been characterized as
a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a
properly filed motion is unopposed and the Court determined
that the moving party has met its burden to demonstrate
entitlement to the relief requested therein, the non-moving
party's failure to file or serve any papers as this Rule requires
shall be deemed as consent to the granting or denial of the
motion, as the case may be, unless good cause is shown.”);
Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1,
n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases);
Este-Green v. Astrue, 09-CV-0722, 2009 WL 2473509, at
*2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting
cases).
III. ANALYSIS
After carefully considering whether Plaintiff is entitled to
summary judgment, the Court answers that question in the
affirmative for the reasons stated in Defendant's memoranda
of law. (Dkt. No. 69, Attach. 1; Dkt. No. 86.) To those reasons,
the Court adds the following analysis, which is intended to
supplement, and not supplant, Defendant's reasoning.
A. Whether the 2015 Assignment of Mortgage
Assigned Defendant a Debt Obligation
In pertinent part, Section 1641(g) states, “In addition to other
disclosures required by this subchapter, not later than 30
days after the date on which a mortgage loan is sold or
otherwise transferred or otherwise assigned to a third party,
the creditor that is the new owner or assignee of the debt
shall notify the borrower in writing of such transfer.” 15
U.S.C. § 1641(g). This Court previously addressed the notice
requirements of 15 U.S.C. § 1641(g) in Garrasi v. Christiana
Trust. 16-CV-1035, 2017 WL 4334134, at 6 n.7 (N.D.N.Y.
Sept. 28, 2017) (Suddaby, C.J.). There, the Court identified
several cases recognizing that, “[b]ased on its plain language,
[Section] 1641(g)’s disclosure obligation is triggered only
when ownership of the ‘mortgage loan’ or ‘debt’ itself is
transferred, not when the instrument securing the debt (that
is, the mortgage) is transferred.” Rider v. HSBC Mortg. Corp.
(USA), 12-CV-0925, 2013 WL 3901519, at *4 (S.D. Ohio
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July 29, 2013) (quoting Giles v. Wells Fargo Bank, N.A.,
519 F. App'x 576, 578 [11th Cir. 2013]); accord, e.g., In
re Bishop, 13-CV-0977, 2014 WL 1266363, at *7 (D. De.
Mar. 21, 2014) (“[C]ase law confirms that what matters for §
1641(g) purposes is [the] transfer of the debt obligation, not
merely [the] assignment of the mortgage.”) (quoting Connell
v. CitiMortgage, Inc., 11-CV-0443, 2012 WL 5511087, at
*8 [S.D. Ala. Nov. 13, 2012]); Foley v. Wells Fargo Bank,
N.A., 11-CV-62314, 2012 WL 4829124, at *3 (S.D. Fla. Sept.
28, 2012) (concluding that Wells Fargo's “interests in the
Mortgage, not in the Note, that were conveyed to [it] by the ...
2010 Assignment were insufficient to trigger the notification
requirements of § 1641(g)” because Wells Fargo was not “
‘the creditor that is the new owner or assignee of the debt,’
which is to whom the very terms of the statute apply the 30-
day notice requirement”).
*8 Here, in his Complaint, Plaintiff alleges that in February
2018 he received an Assignment of Mortgage assigning
the deed of trust on his home from his original lender,
effective July 20, 2015. (Dkt. No. 2, at ¶ 4.) Despite Plaintiff's
arguments to the contrary, such an assignment does not give
rise to liability for a violation of Section 1641(g) because of
the lack of admissible record evidence that Defendant is a new
owner or the new assignee of a mortgage loan. See, e.g., Jara
v. Aurora Loan Servs., 852 F. Supp. 2d 1204, 1209 (N.D. Cal.
2012) (“15 U.S.C. § 1641(g) only applies to creditors who
are new owners or assignees of [a] mortgage loan, and Mr.
Jara does not allege that Aurora is a new owner or assignee of
his loan.”) (emphasis added). Accordingly, Plaintiff does not
have a valid TILA claim against Defendant. 12
B. Whether Plaintiff's TILA Claim Is Barred by the
Statute of Limitations
“The statute of limitations for filing a private action for
monetary damages under TILA is one year.” Kelmetis v.
Fed. Nat'l Mortg. Assoc., 16-CV-0246, 2017 WL 395120,
at *6 (N.D.N.Y. Jan. 27, 2017) (D'Agostino, J.). Plaintiff
does not appear to dispute that this limitations period expired
in or around August 30, 2016 (i.e., one year after the
thirty-day period following the assignment); instead, Plaintiff
argues that he is entitled to equitable tolling dating back to
February 2018, eight months before this case was filed. (Dkt.
No. 82 at 18-20 [Plf.’s Opp'n Memo. of Law].) However,
“equitable tolling will not be applied unless the plaintiff
alleges affirmative acts of concealment by the defendant over
and above any alleged non-disclosure that forms the basis
of her claims.” Kelmetis, 2017 WL 395120, at *6 (quoting
Futterman v. Washington Mut. Bank, FA, 10-CV-1002, 2010
WL 5067650, at *2 [N.D.N.Y. Dec. 6, 2010] [Kahn, J.]).
To invoke the doctrine of fraudulent
concealment properly [for purposes of
seeking an equitable tolling of the
statute of limitations], a plaintiff must
establish three elements, including (1)
wrongful concealment by defendants
[of their actions] (2) which prevented
plaintiff's discovery of their nature of
the claim within the limitations period,
and (3) due diligence in pursuing the
discovery of the claim.
Reeder v. Robinson, 16-CV-1129. 2018 WL 3121633, at *5
(N.D.N.Y. Jan 24, 2018) (Danks, M.J.) (quoting Richard v.
LeClaire, 15-CV-0006, 2017 WL 4349381, at *2 [N.D.N.Y.
Sept. 29, 2017] [Sannes, J.]).
“A claim of fraudulent concealment must be pled with
particularity, in accordance with the heightened pleading
standards of Fed. R. Civ. P. 9(b).” Hinds Cty., Miss. v.
Wachovia Bank N.A., 620 F. Supp. 2d 499, 520 (S.D.N.Y.
2009). As to the circumstances of fraud, “the complaint must
‘(1) detail the statements (or omissions) that the plaintiff
contends are fraudulent, (2) identify the speaker, (3) state
where and when the statements (or omissions) were made, and
(4) explain why the statements (or omissions) are fraudulent.’
” Lorely Fin. Jersey No. 3 Ltd. v. Wells Fargo Secs., LLC,
797 F.3d 160, 171 (2d Cir. 2015) (quoting Eternity Global
Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d
168, 187 [2d Cir. 2004]). As to the defendant's mental state,
although the heightened pleading standard does not apply,
the plaintiff “must nonetheless allege facts ‘that give rise to
a strong inference of fraudulent intent.’ ” Loreley Fin., 797
F.3d at 171 (quoting Lerner v. Fleet Bank, N.A., 459 F.3d 273,
290-91 [2d Cir. 2006]). “In determining the adequacy of [the
plaintiff's] fraud pleadings under these various requirements,
we view the alleged facts in their totality, not in isolation.” Id.
(citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322-23, 127 S.Ct. 2499, 168 L.Ed.2d 179 [2007]).
*9 Here, Plaintiff has failed to identify with particularity
the circumstances constituting fraud or mistake. “[I]n
cases involving TILA, the courts have held uniformly
that fraudulent conduct beyond the nondisclosure itself
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is necessary to equitably toll the running of the statute
of limitations[,] ... because if the very nondisclosure or
misrepresentation that gave rise to the TILA violation also
tolled the statute of limitations, the effect of the statute of
limitations would be nullified.” Grimes v. Fremont Gen.
Corp., 785 F. Supp. 2d 269, 286 (S.D.N.Y. 2011) (internal
quotation marks omitted; emphasis in original). Because
Plaintiff has failed to adduce admissible record evidence
establishing (let alone plead with particularity) any fraudulent
conduct that Defendant engaged in beyond the nondisclosure
itself, the Court finds that the statute of limitations should not
be equitably tolled.
Accordingly, for all of these reasons, the Court finds, in the
alternative, that Defendant is entitled to summary judgment
because Plaintiff's claim is time-barred by the statute of
limitations.
C. Whether Plaintiff's TILA Claim Is Barred by the
Doctrine of Res Judicata
“Under the Constitution's Full Faith and Credit Clause, see
U.S. Const. Art. IV, § 1, federal courts must accord state court
judgments the same preclusive effect as other courts within
that state.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)
(citing Migra v. Warren City Sch. Dist., 465 U.S. 75, 81,
104 S.Ct. 892, 79 L.Ed.2d 56 [1984]). The Court's “analysis
is governed by New York State law, which has adopted a
transactional approach to res judicata, barring a later claim
arising out of the same factual grouping as an earlier litigated
claim even if the later claim is based on different legal theories
or seeks dissimilar or additional relief.” Burgos, 14 F.3d at
790 (emphasis added) (citing Smith v. Russel Sage College, 54
N.Y. 2d 185, 445 N.Y.S.2d 68, 429 N.E.2d 746 [1981]). “To
prove the affirmative defense [of res judicata] a party must
show that (1) the previous action involved an adjudication on
the merits; (2) the previous action involved the plaintiff[ ] or
those in privity with them; [and] (3) the claims asserted in the
subsequent action were, or could have been, raised in the prior
action.” Monohan v. New York City Dep't of Corrs., 214 F.3d
275, 285 (2d Cir. 2000) (citing Allen v. McCurry, 449 U.S. 90,
94, 101 S.Ct. 411, 66 L.Ed.2d 308 [1980]).
Here, Defendant has provided uncontroverted evidence that
the operative facts alleged in both actions are a part of the
same transaction and factual grouping. In the Foreclosure
Action, Plaintiff has argued that the 2015 assignment of
mortgage evidenced a standing defect sufficient to vacate the
foreclosure judgment and to dismiss the action. (See, supra,
Part I.B. of this Decision and Order.) In this case, Plaintiff
seeks a computation of damages due to Defendant's alleged
failure to notify him of the 2015 assignment of mortgage in
accordance with 15 U.S.C. § 1641(g). (See generally Dkt. No.
2 [Plf.’s Compl].) Although Plaintiff seeks dissimilar forms
of relief in the two actions, both the Complaint in this action
and Plaintiff's defense in the Foreclosure Action involve
allegations relating to the origin of Plaintiff's mortgage and
its subsequent assignment. Harris v. BNS Mortg. Inc., 737 F.
App'x 573, 576 (2d Cir. 2017).
Moreover, Defendant has satisfied all three elements
necessary to invoke the doctrine of res judicata and preclude
Plaintiff's TILA claim. A judgment of foreclosure and sale,
even if obtained by default, is a final adjudication of the
merits. See EDP Med. Comput. Sys. Inc. v. United States, 480
F.3d 621, 626 (2d Cir. 2007) (“Res judicata does not require
the precluded claim to actually have been litigated.... That
is why it has long been the law that default judgments can
support res judicata as surely as judgments on the merits.”);
Henry Modell & Co., Inc. v. Minister, Elders & Deacons of
Reformed Protestant Dutch Church of City of New York, 68
N.Y. 2d 456, 461, 510 N.Y.S.2d 63, 502 N.E.2d 978 (N.Y.
1986) (“[A] party is not free to remain silent in an action
in which he is the defendant and then bring a second action
seeking relief inconsistent with the judgment in the first action
by asserting what is simply a new legal theory.”); Harris,
737 F. App'x at 575. Additionally, there is no dispute that
Plaintiff was a party to the foreclosure action; Plaintiff has
been contesting the foreclosure action for more than eleven
years, even after the entry of the October 26, 2017, foreclosure
order. (See, supra, Part I.B. of this Decision and Order.)
Accordingly, the Court must determine whether Plaintiff's
TILA claim could have been raised in the prior action.
*10 The Court concludes that Plaintiff could have raised his
TILA claim in the prior action. 13 Assuming Plaintiff's TILA
claim did not arise until he discovered the 2015 assignment of
mortgage, the unrebutted evidence demonstrates that Plaintiff
became aware of the 2015 assignment of mortgage in August
2017, prior to the entry of the October 26, 2017, judgment
of foreclosure and sale. Although Plaintiff's points to the
affidavit of Mr. Rosendale in opposition to Defendant's
position, the Court notes that Mr. Rosendale's representation
fails to rebut the presumption of the mailing of the 2015
Assignment of Mortgage on August 11, 2017. Specifically,
Mr. Rosendale's affidavit does not assert that he resided
with Plaintiff or that he had any personal knowledge of
what mail was delivered to Plaintiff's home on August 11,
2017, or any other day. (See generally Dkt. No. 82, Attach.
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1.) Thus, Plaintiff has no basis other than inadmissible
hearsay on which to challenge the affidavit of service of
Defendant's foreclosure counsel. Inadmissible hearsay cannot
be considered on a motion for summary judgment. Niedzieko
v. Del. & Hudson Ry. Co., 18-CV-0675, 2019 WL 1386047, at
*38 (N.D.N.Y. Mar. 27, 2019) (Suddaby, C.J.). Accordingly,
even if the accrual date was resolved most favorably to
Plaintiff, he would nevertheless have had the opportunity to
litigate his TILA claim in the Foreclosure Action. Because
Plaintiff had an opportunity to raise his TILA claim in the
related foreclosure action, and he failed to do so, he is now
precluded from re-litigating the waived claim.
For all of these reasons, the Court finds, in the alternative,
that Plaintiff's TILA claim is barred under the doctrine of res
judicata.
ACCORDINGLY, it is
ORDERED that Defendant's motion for summary judgment
(Dkt. No. 69) is GRANTED; and it is further
ORDERED that Plaintiff's Complaint (Dkt. No. 2) is
DISMISSED.
All Citations
Not Reported in Fed. Supp., 2021 WL 1062590
Footnotes
1 (Dkt. No. 4; Dkt. No. 69, Attach. 33; Dkt. No. 71, at 2.)
2 The Court notes that, in response to Defendant's motion for summary judgment, Plaintiff filed not a Rule
7.1 (or 56.1) Response but a “FRCP 56.1 b 1 Statement.” (Dkt. No. 82, at 27-36.) Such a document, which
omits admissions/denials and attempts to assert undisputed material facts, has no place in the procedure
established by Local Rule 7.1 (or 56.1) and will be disregarded. See Binghamton-Johnson City Joint Sewage
Bd. v. Am. Alternative Ins. Corp., 12-CV-0553, 2015 WL 2249346, at *11 n.1 (N.D.N.Y. May 13, 2015)
(Suddaby, J.) (“Neither the Federal Rules of Civil Procedure nor the Local Rules of Practice [for the N.D.N.Y.]
permit such a counterstatement in response to a motion for summary judgment.... This, of course, makes
sense, given that what is needed for a non-movant to defeat a motion is a genuine dispute of fact; and the only
point of asserting undisputed facts would be to prevail on a cross-motion for summary judgment.”); accord,
Davis v. City of Syracuse, 12-CV-0276, 2015 WL 1413362, at *2 n.1 (N.D.N.Y. Mar. 27, 2015) (Suddaby, J.);
N.Y. Teamsters v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir. 2005) (upholding grant of summary
judgment where “[t]he district court, applying Rule 7.1[a][3] strictly, reasonably deemed [movant's] statement
of facts to be admitted” because the non-movant submitted a responsive Rule 7.1[a][3] statement that “offered
mostly conclusory denials of [movant's] factual assertions and failed to include any record citations”); Meaney
v. CHS Acquisition Corp., 103 F. Supp. 2d 104, 108-09 (N.D.N.Y. 2000) (Kahn, J.) (deeming assertions in
movant's Rule 7.1 Statement where non-movant's Rule 7.1 Response did not mirror the Rule 7.1 Statement);
Phipps v. New York State Dept. of Labor, 53 F. Supp. 2d 551, 556 (N.D.N.Y. 1999) (McAvoy, C.J.) (“Because
plaintiff's 129 paragraph response did not mirror the 7.1(a)(3) Statement submitted by the defendant, the
facts set forth in defendant's 7.1(a)(3) Statement are deemed admitted.”).
3 Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.) (citing cases).
4 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue
of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) [citation omitted]. As the Supreme Court has
explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to
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the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986).
5 Among other things, Local Rule 56.1 (previously Local Rule 7.1[a][3]) requires that the non-movant file a
response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual
assertions in matching number paragraphs, and supports any denials with a specific citation to the record
where the factual issue arises. N.D.N.Y. L. R. 56.1.
6 Cusamano v. Sobek, 604 F. Supp.2d 416, 426 & n.2 (N.D.N.Y. 209) (Suddaby, J.) (citing cases).
7 Cusamano, 604 F. Supp.2d at 426 & n.3 (citing cases).
8 Cusamano, 604 F. Supp.2d at 426-27 & n.4 (citing cases).
9 Among other things, Local Rule 56.1 (previously Local Rule 7.1[a][3]) requires that the non-movant file a
response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual
assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record
where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3).
10 Cusamano, 604 F. Supp.2d at 427 & n.6 (citing cases).
11 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31, 1999 WL 325378 (N.D.N.Y.
March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several
arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of
summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule
7.1[b][3]); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29,
2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert
testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground).
12 Plaintiff also mistakenly argues that, because the Court rejected the argument on Defendant's original motion
to dismiss (Dkt. No. 28), the Court should do so again. (Dkt. No. 82, at 11-13.) However, Plaintiff does not
properly identify the Court's ruling in its previous decision: that Defendant's affirmative defense arguments
were improper for a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) but are
more appropriate for a motion for summary judgment pursuant to Fed. R. Civ. P. 56.
13 Plaintiff's reliance on N.Y. RPAPL § 1302-a is misplaced because the statute, by its own terms, strips neither
the October 26, 2017, judgment of foreclosure and sale, nor the Hon. Christopher E. Cahill's decision to not
vacate the judgement of foreclosure and sale, of its preclusive effect regarding any other previously waived
objections or defenses other than lack of standing.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Simpson v. Price, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2022 WL 336540
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
James SIMPSON, Plaintiff,
v.
R. PRICE, C.O., Defendant.
9:19-CV-1413 (MAD/ATB)
|
Signed 02/04/2022
Attorneys and Law Firms
JAMES SIMPSON, 18-B-0295, Cayuga Correctional
Facility, P.O. Box 1186, Moravia, New York 13118, Plaintiff
pro se.
OF COUNSEL: KONSTANDINOS D. LERIS, AAG,
OFFICE OF THE NEW YORK, STATE ATTORNEY
GENERAL, The Capitol, Albany, New York 12224,
Attorneys for Defendant.
MEMORANDUM-DECISION AND ORDER
Mae A. D'Agostino, United States District Judge:
I. INTRODUCTION
*1 On November 15, 2019, Plaintiff, an inmate in the
custody of the New York State Department of Corrections
and Community Supervision (“DOCCS”), filed his original
complaint in this matter pursuant to 42 U.S.C. § 1983.
See Dkt. No. 1. On January 3, 2020, the Court dismissed
the complaint on initial review and permitted Plaintiff an
opportunity to file an amended complaint. See Dkt. No. 4.
Plaintiff filed his amended complaint on January 21, 2020,
which the Court accepted for filing to the extent that it
asserted an Eighth Amendment excessive force claim against
Defendant Price stemming from events that occurred on
August 9, 2019. See Dkt. Nos. 5 & 8. Plaintiff was granted
leave to file a second amended complaint on September 24,
2020, and the second amended complaint was accepted for
filing to the extent that it asserted an additional excessive
force claim against Defendant arising from events that
occurred on October 10, 2018. See Dkt. No. 29.
On August 24, 2021, Defendant moved for summary
judgment. See Dkt. No. 41. On September 9, 2021,
Plaintiff responded to Defendant's motion. See Dkt. No. 43.
In a Report-Recommendation dated December 29, 2021,
Magistrate Judge Baxter recommended that the Court grant
Defendant's motion in its entirety and dismiss this case.
See Dkt. No. 46. In his Report-Recommendation, Magistrate
Judge Baxter first found that Defendant was not personally
involved in the October 10, 2018 incident. See id. at 9. As to
the August 9, 2019 excessive force claim, Magistrate Judge
Baxter initially found that dismissal is appropriate because
Plaintiff failed to exhaust his administrative remedies. See
id. at 13-21. Alternatively, Magistrate Judge Baxter found
that the claim should be dismissed on the merits because
Plaintiff failed to establish both the subjective and objective
components of an Eighth Amendment excessive force claim.
See id. at 23-26.
In objections received on January 13, 2022, Plaintiff argues,
in an entirely conclusory manner, that he has set forth a valid
Eighth Amendment excessive force claim. See Dkt. No. 47 at
1-4. Additionally, Plaintiff contends that he was not required
to exhaust his claim stemming from the events on August 9,
2019 because of the “futility exception.” Id. at 2. As set forth
below, Defendant's motion for summary judgment is granted
in its entirety.
II. BACKGROUND
For a complete recitation of the relevant factual background,
the parties are referred to Magistrate Judge Baxter's
December 29, 2021 Report-Recommendation. See Dkt. No.
46.
III. DISCUSSION
A. Standard of Review
When a party files specific objections to a magistrate judge's
report-recommendation, the district court “make[s] a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). However, when a party
files “[g]eneral or conclusory objections, or objections which
merely recite the same arguments [that he] presented to the
magistrate judge,” the court reviews those recommendations
for clear error only. O'Diah v. Mawhir, No. 9:08-CV-322,
2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations
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Simpson v. Price, Not Reported in Fed. Supp. (2022)
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and footnote omitted). After the appropriate review, “the
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).
*2 A court may grant a motion for summary judgment only
if it determines that there is no genuine issue of material fact
to be tried and that the facts as to which there is no such
issue warrant judgment for the movant as a matter of law.
See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d
Cir. 1994) (citations omitted). When analyzing a summary
judgment motion, the court “cannot try issues of fact; it can
only determine whether there are issues to be tried.” Id. at 36–
37 (quotation and other citation omitted). Moreover, it is well-
settled that a party opposing a motion for summary judgment
may not simply rely on the assertions in its pleadings. See
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting
Fed. R. Civ. P. 56 (c), (e)).
In assessing the record to determine whether any such issues
of material fact exist, the court is required to resolve all
ambiguities and draw all reasonable inferences in favor of
the nonmoving party. See Chambers, 43 F.3d at 36 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986))
(other citations omitted). Where the non-movant either does
not respond to the motion or fails to dispute the movant's
statement of material facts, the court may not rely solely
on the moving party's Rule 56.1 statement; rather the court
must be satisfied that the citations to evidence in the record
support the movant's assertions. See Giannullo v. City of
New York., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding
that not verifying in the record the assertions in the motion
for summary judgment “would derogate the truth-finding
functions of the judicial process by substituting convenience
for facts”).
“Assessments of credibility and choices between conflicting
versions of the events are matters for the jury, not for the
court on summary judgment.” Jeffreys v. City of New York,
426 F.3d 549, 553–54 (2d Cir. 2005) (quotation omitted).
“However, ‘[t]he mere existence of a scintilla of evidence in
support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find
for the plaintiff.” Id. (quoting Anderson, 477 U.S. at 252
(emphasis and alterations in original)). “To defeat summary
judgment, therefore, nonmoving parties ‘must do more than
simply show that there is some metaphysical doubt as to
the material facts,’ ... and they ‘may not rely on conclusory
allegations or unsubstantiated speculation.’ ” Id. (quotations
omitted).
“[I]n a pro se case, the court must view the submissions
by a more lenient standard than that accorded to ‘formal
pleadings drafted by lawyers.’ ” Govan v. Campbell, 289
F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v.
Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).
The Second Circuit has opined that the court is obligated
to “make reasonable allowances to protect pro se litigants”
from inadvertently forfeiting legal rights merely because they
lack a legal education. Id. (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983)). “However, this does not mean that
a pro se litigant is excused from following the procedural
requirements of summary judgment.” Kotler v. Fischer, No.
9:09-CV-01443, 2012 WL 929823, *12 (N.D.N.Y. Mar. 19,
2012) (citations omitted). Specifically, “a pro se party's
‘bald assertion,’ completely unsupported by evidence is not
sufficient to overcome a motion for summary judgment.” Lee
v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing
Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
B. October 10, 2018 Incident
In his second amended complaint, Plaintiff alleges that on
October 10, 2018, he had a medical appointment outside of
Cayuga Correctional Facility (“Cayuga C.F.”). See Dkt. No.
30 at 2. Plaintiff informed the correctional officers responsible
for his transport that the leg irons that he was placed in were
too small for his ankles. See id. The officers ignored Plaintiff's
complaints, resulting in severe bruises and aggravation of an
open wound on his ankle. See id.
*3 In its initial review of Plaintiff's second amended
complaint, the Court read the pleading as alleging that
Defendant Price was one of the officers who transported
Plaintiff to his medical appointment on October 10, 2018.
See Dkt. No. 29 at 3. At Plaintiff's deposition, however,
he confirmed that Defendant Price was not involved in the
October 10, 2018 incident. See Dkt. No. 41-1 at 41. Since
Defendant Price was not present at the time of the October 10,
2018 incident, the undisputed facts demonstrate that he was
not personally involved in any constitutional violation. As
such, Magistrate Judge Baxter correctly determined that this
claim must be dismissed due to Defendant's lack of personal
involvement. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir.
1994).
C. August 9, 2019 Incident
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Simpson v. Price, Not Reported in Fed. Supp. (2022)
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1. Exhaustion of Administrative Remedies
As Magistrate Judge Baxter correctly determined, the
excessive force claim stemming from the incident on August
9, 2019 should be dismissed due to Plaintiff's failure to
exhaust. The undisputed facts before the Court establish that
there is no record of a grievance being filed regarding this
incident and that, even if such a grievance was filed, the
denial of the grievance was not appealed to the CORC.
See Dkt. No. 46 at 13-15; Dkt. No. 41-3; Dkt. No. 41-4.
Plaintiff attempts to argue that the grievance process was
unavailable to him, but his explanations/arguments have
evolved over time and are insufficient to establish his
burden of demonstrating unavailability, as fully explained
by Magistrate Judge Baxter. See Dkt. No. 46 at 13-20.
Plaintiff has provided no specifics regarding when the alleged
grievances were written, their content, or the steps that he took
to provide them to an officer to send to the grievance office.
Additionally, Plaintiff has failed to provide the Court with
any documentary evidence to corroborate that he attempted
to file a grievance, such as follow-up correspondence after
his release from SHU. As such, the Court finds that Plaintiff's
conclusory allegations are insufficient to defeat summary
judgment. See Sankara v. Montgomery, No. 9:16-cv-885,
2018 WL 4610686, *8 (N.D.N.Y. June 25, 2018) (“Plaintiff's
conclusory allegations that the DOCCS IGP was unavailable
to him [while confined to the SHU] were insufficient to
withstand summary judgment,” where the plaintiff “provided
no evidence that he actually did write grievances; when
they were written; the content of the grievances; ... the
officers named in the grievance(s) ...; the specific steps
taken by Plaintiff to provide them to an officer to send to
the grievance office; and any specific follow up with the
grievance office”). Plaintiff's objections to Magistrate Judge
Baxter's Report-Recommendation simply reiterate his belief
that administrative remedies were unavailable to him in an
entirely conclusory fashion. See Dkt. No. 47 at 2.
Accordingly, the Court's Defendant's motion for summary
judgment as to this claim based on Plaintiff's failure to exhaust
the available administrative remedies.
2. Merits
Magistrate Judge Baxter also correctly found, in the
alternative, that Plaintiff's excessive force claim relating to the
August 9, 2019 incident should be dismissed on the merits.
This incident again involves the application of leg irons on
Plaintiff while he was being transported that were allegedly
too small and caused a wound to reopen, resulting in an
infection. See Dkt. No. 46 at 23.
According to the undisputed facts, on August 9, 2019,
Plaintiff had an appointment at SUNY Upstate Medical
University at 9:45 a.m. See Dkt. No. 41-2 at ¶¶ 10-11. Plaintiff
was required to arrive at the departure location at Cayuga
C.F. no later than 8:15 a.m. for an 8:30 a.m. departure. See
id. at ¶¶ 11-12. Plaintiff arrived at the transport location at
8:45 a.m., at which point he was frisked and then placed
in the transport van. See id. at ¶¶ 13-14. Once Plaintiff was
placed in the van, Defendant attempted to place standard-
sized ankle restraints on Plaintiff, which Plaintiff refused. See
id. at ¶ 15. Plaintiff told Defendant that he would not wear
the standard-sized restraints, and that he had a permit for “big
boy” cuffs to ease the pressure placed on chronic wounds on
his ankles and feet. See id. at ¶ 17. At this point, Defendant
stopped attempting to place the standard-sized leg restraints
on Plaintiff and contacted the area supervisor. See id. at ¶
21. Defendant and the supervisor then escorted Plaintiff from
the van to the infirmary, where Plaintiff spoke with Nurse
Giovannetti. See id. at ¶ 22. Nurse Giovannetti placed a gauze
bandage around one of Plaintiff's ankles and, at this point,
Plaintiff agreed to continue on the medical trip. See id. at ¶ 23.
*4 Additionally, while at the infirmary, Defendant and the
supervisor checked with the Deputy Superintendent's Office
and Medical Office for any documentation concerning a
permit approving Plaintiff for larger restraints. See id. at ¶
24. Neither office found any documentation and, therefore, it
was determined that standard-sized ankle restraints would be
used. See id. Upon returning to the van, Plaintiff permitted
Defendant to apply the standard-sized restraints without
further complaint. See id. The delay caused by the trip to the
infirmary and checking for the existence of the permit resulted
in Plaintiff arriving for his medical appointment thirty-five
minutes after the scheduled arrival time. See id. at ¶ 26.
As Magistrate Judge Baxter correctly determined, the
undisputed facts, beyond Plaintiff's own conclusory
assertions, demonstrate that the alleged force was not
employed in a sadistic or malicious manner intending to cause
harm. As such, he has failed to satisfy the subjective prong
of his excessive force claim. See Chambliss v. Rosini, 808
F. Supp. 2d 658, 669 (S.D.N.Y. 2011) (citation omitted).
Moreover, Plaintiff has failed to satisfy the objective prong
of his excessive force claim since he has alleged only
de minimis injury without any plausible allegations of
wantonness or maliciousness. See Livingston v. Hoffnagle,
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Simpson v. Price, Not Reported in Fed. Supp. (2022)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
No. 9:19-cv-353, 2019 WL 7500501, *4 (N.D.N.Y. Nov. 8,
2019) (listing cases); see also Burroughs v. Mitchell, 325 F.
Supp. 3d 249, 265 (N.D.N.Y. 2018) (dismissing the pro se
inmate's excessive force claim where he alleged only that the
defendants “handcuffed him tightly, which caused cuts to his
wrist”).
Based on the foregoing, the finds that Defendant is entitled to
summary judgment on this alternative ground.
IV. CONCLUSION
Accordingly, the Court hereby
ORDERS that Magistrate Judge Baxter's December 29, 2021
Report-Recommendation (Dkt. No. 46) is ADOPTED in its
entirety for the reasons set forth therein; and the Court
ORDERS that Defendant's motion for summary judgment
(Dkt. No. 41) is GRANTED in its entirety; and the Court
further
ORDERS that the Clerk of the Court shall enter judgment in
Defendant's favor and close this case; 1 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.
All Citations
Not Reported in Fed. Supp., 2022 WL 336540
Footnotes
1 In a one-page letter motion dated January 18, 2022, Plaintiff asks the Court “for permission for the defendant
to take a voice analysis with my question, about the event that happen [sic] at my cost.” Dkt. No. 48.
It is entirely unclear what Plaintiff is seeking in this letter motion. However, since the Court has granted
Defendant's motion for summary judgment in its entirety, this letter motion is denied as moot.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-01581-DNH-ML Document 42 Filed 01/21/26 Page 278 of 290

Stephanski v. Allen, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 806331
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Paul STEPHANSKI, Plaintiff,
v.
Randy ALLEN, Sergeant, Cape Vincent
Correctional Facility; Thomas Stackle, Correctional
Officer, Cape Vincent Correctional Facility;
and Brandon Payne, Correctional Officer, Cape
Vincent Correctional Facility, Defendants.
9:18-CV-0076 (BKS/CFH)
|
Signed 01/22/2020
Attorneys and Law Firms
PAUL STEPHANSKI, 99-B-2439, Plaintiff pro se, Marcy
Correctional Facility, P.O. Box 3600, Marcy, New York
13403.
HON. LETITIA JAMES, Attorney General for the State
of New York, OF COUNSEL: AIMEE COWAN, ESQ.,
Assistant Attorney General, Attorney for Defendants, 300
South State Street, Suite 300, Syracuse, New York 13202.
REPORT-RECOMMENDATION AND ORDER 1
CHRISTIAN F. HUMMEL, U.S. MAGISTRATE JUDGE
*1 Plaintiff pro se Paul Stephanski (“Stephanski”), an
inmate who was, at all relevant times, in the custody of
the New York Department of Corrections and Community
Supervision (“DOCCS”), brings this action pursuant to
42 U.S.C. § 1983 against Defendants Sergeant Randy
Allen (“Allen”) and Correctional Officers Thomas Stackle
(“Stackle”) and Brandon Payne (“Payne”) for alleged
violations of his rights under the Eighth Amendment. Dkt.
No. 1 (“Compl.”). Presently before the Court is Defendants’
motion for summary judgment. Dkt. No. 39. Stephanski
opposed the motion, and Defendants submitted a reply. Dkt.
Nos. 44, 45. For the following reasons, it is recommended that
Defendants’ motion for summary judgment be denied.
I. BACKGROUND
A. FACTS 2
In support of their motion, Defendants filed a Statement of
Material Facts. 3 Dkt. No. 39-9. The facts are reviewed in the
light most favorable to Stephanski as the non-moving party.
See subsection II.A.1 infra.
1. Use of Force Incident
*2 On September 30, 2015, a use of force incident
involving Stephanski and Defendants occurred at Cape
Vincent Correctional Facility (“Cape Vincent C.F.”). Compl.
at 5-6. 4 At approximately 5:30 P.M., Stephanski was
smoking a cigarette in his cell, C29, in the Special Housing
Unit (“SHU”). Dkt. No. 39-2 at 26-27. Payne and Stackle
came to Stephanski's cell and directed him to put his hands
out of the hatch to be handcuffed. 5 Id. at 29. Stephanski
complied, and Defendants handcuffed him with his arms
behind his back. Id. at 30-31, 40. One of the officers told
Stephanski to walk to the center of the cell. Id. at 34.
Stephanski complied, and Payne and Stackle “rushed in.” Dkt.
No. 39-2 at 34. Stackle grabbed Stephanski and pushed him
to the corner of the room while Payne searched the cell. Id.
Stackle punched Stephanski twice in the ribcage, and Payne
punched him six to eight times in the back. Id. at 34-41.
Defendants forcibly removed Stephanski from his cell. Id. at
39.
Payne and Stackle escorted Stephanski to the strip frisk room
where they were met by Allen. Dkt. No. 39-2 at 41. Allen
directed Stephanski to lie on the floor of the room and then
punched him eight times in the back of his right leg while
Payne twisted his right ankle and Stackle “mush[ed] [his] face
into the floor.” Id. at 43-46. After the incident, Stephanski
was confined to the SHU and remained on “special watch”
for eleven days. Dkt. No. 39-8 at 4. On November 6, 2015,
Stephanski was transferred to Southport Correctional Facility
(“Southport C.F.”). 6 Dkt. No. 39-2 at 62-63; Dkt. No. 39-4
at 7.
2. Grievances
Stephanski testified that between October 7, 2015 and
October 9, 2015, he attempted to file two grievances while
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confined in Cape Vincent C.F. SHU Cell A-1-1. 7 Dkt.
No. 39-3 at 14-15. Stephanski claims that he handed the
grievances to an officer who collected mail and that he
observed the officer put the mail in a locked box. Id.
Stephanski alleges that the grievances, “never got to [the
Inmate Grievance Committee].” Dkt. No. 39-2 at 60-62.
Stephanski did not receive a response to his grievances. Id.
at 62.
After Stephanski arrived at Southport C.F., he wrote a letter
to the Cape Vincent Grievance Committee inquiring about
the status of his grievance(s) related to the September 2015
incident. 8 Dkt. No. 39-2 at 61-62; Dkt. No. 39-8 at 11.
The letter reads, “[w]hen I was at your facility I wrote a
grievance on a assault that took place in your box-against C.O.
Stackle, C.O. Payne and Sgt. Allen - what is the status on that
grievance - please respond.” Id.
On November 27, 2015, Stephanski submitted a written
grievance to the Inmate Grievance Resolution Committee
(“IGRC”) at Southport C.F. related to the September 2015
incident. Dkt. No. 39-2 at 64-65; Dkt. No. 39-6 at ¶ 11. In
the grievance, Stephanski described the use of force incident
and claimed, “I also filed a grievance got no response - I also
wrote and reported it to IG in Albany - still haven't heard
anything so I now file this at Southport C.F. due to mitigating
circumstances.” Dkt. No. 39-8 at 5-6. Stephanski also alleged
that his grievances and letters were “tampered with[.]” 9 Id.
On November 30, 2015, Tami Hartz (“Hartz”), the Inmate
Grievance Program (“IGP”) Supervisor at Cape Vincent C.F.,
responded to Stephanski's inquiry. The response states, “This
is in response to your note received on 11/30/15. A review of
the IGRC log reveals there is no record of a grievance from
you in 2015.” Dkt. No. 39-2 at 61-62; Dkt. No. 39-8 at 10. On
November 30, 2015, the IGP Supervisor denied the grievance
as “untimely.” 10 Dkt. No. 39-2 at 64; Dkt. No. 39-6 at ¶ 13.
*3 On December 1, 2015, Stephanski wrote a letter to “H.
Martin,” the IGP Supervisor at Southport C.F., “returning the
grievance” because it “need[ed] a number.” Dkt. No. 39-2
at 64; Dkt. No. 39-8 at 4. Stephanski indicated, “I do not
know if Cape Vincent Correctional Facility filed my original
complaint[.]” Dkt. No. 39-8 at 4. Stephanski noted, “this
needs to be filed and given a number - your response [that
it] is untimely - that's fine - please give it a number so it's on
file.” Id. Stephanski argued that “mitigating circumstances”
excused the late filing. Id.
On December 2, 2015, the IGRC received and filed the
grievance as SPT-61355-15. Dkt. No. 39-6 at ¶ 15; Dkt. No.
39-8 at 2.
On December 4, 2015, DOCCS issued a document entitled
“Inmate Grievance Program - Investigation”, denying
Grievance No. SPT 61355-15. 11 Dkt. No. 39-8 at 2, 3, 9.
Under the heading “Investigative Report,” the decision states:
“Denied: According to Cape Vincent C.F. no grievance was
filed concerning this issue. Grievant was informed by mail
dated 11/30/15. The incident is untimely and will not be
investigated.” Dkt. No. 39-8 at 9. The Investigative Report
also contains the following notation:
1/27 - IGPS Hartz
No F/U with IGPS prior to 11/6 T/F to SPT.
Dkt. No. 39-8 at 9.
On December 9, 2015, Stephanski appealed the IGRC's
decision to the Superintendent. Dkt. No. 39-8 at 3. On
December 10, 2015, the Superintendent denied the grievance.
Id. at 2, 7. The response reads:
Upon full hearing of the facts and
circumstances in the instant case, the
action requested herein is denied.
According to our investigation Cape
Vincent CF has advised that no
grievance concerning this issue was
ever received and filed. Grievant was
informed by mail dated 11/30/15 that
the issues in his complaint are now
beyond the timeframes established in
Directive 4040. Therefore, any issues
raised in grievant's complaint which
exceed the time frames for filing a
grievance will not be addressed and
should not be the subject of another
grievance.
Dkt. No. 39-8 at 7.
On December 14, 2015, Stephanski appealed the decision to
the Central Office Review Committee (“CORC”) arguing that
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“[d]ue to Cape Vincent not filing grievance - this should be
accepted and investigated fully.” Dkt. No. 39-8 at 2, 3, 7.
On February 17, 2016, CORC issued a decision and
“unanimously denied [the appeal] as without merit.” Dkt.
No. 39-8 at 1; Dkt. No. 39-6 at ¶ 16. CORC reasoned that
Stephanski could not avail himself of Section 701.6(g)(1)(i)
(a) 12 because “an exception to the time limit may not be
granted more than 45 days after an alleged occurrence.” Dkt.
No. 39-8 at 1; Dkt. No. 44-5 at 9.
B. Procedural History
*4 On January 18, 2018, the Court received the Complaint in
the within action. Dkt. No. 1. Upon review of the Complaint,
the Court directed Defendants to respond to the Eighth
Amendment claim. Dkt. No. 9. On June 1, 2018, Defendants
filed an Answer to the Complaint. 13 Dkt. No. 18. On
November 21 and December 7, 2018, Stephanski appeared at
depositions. 14 Dkt. No. 39-2 and 39-3. On June 26, 2019,
Defendants filed the within motion pursuant to Fed. R. Civ.
P. 56 seeking judgment as a matter of law with respect to
Stephanski's Eighth Amendment claim. Dkt. No. 39.
II. DISCUSSION
Stephanski contends that Defendants used excessive force
during the September 2015 incident in violation of the Eighth
Amendment. See generally Compl. Defendants move for
summary judgment on Stephanski's Eighth Amendment claim
arguing that he failed to exhaust his administrative remedies.
See generally Dkt. No. 39.
A. Legal Standard
A motion for summary judgment may be granted if there is
no genuine issue as to any material fact, it was supported
by affidavits or other suitable evidence, and the moving
party is entitled to judgment as a matter of law. The moving
party bears the burden of demonstrating the absence of
disputed material facts by providing the court with portions
of pleadings, depositions, and affidavits which support the
motion. FED R. CIV. P. 56; Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
Facts are material if they may affect the outcome of the
case as determined by substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 317, 248, 106 S.Ct. 2548, 91 L.Ed.2d
265 (1986). All ambiguities are resolved and all reasonable
inferences are drawn in favor of the non-moving party. Skubel
v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
The party opposing the motion must set forth facts showing
a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
89 L.Ed.2d 538 (1986). For a court to grant a motion for
summary judgment, it must be apparent that no rational finder
of fact could find in favor of the non-moving party. Gallo
v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219,
1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342,
344 (2d Cir. 1988).
Where, as here, a party seeks judgment against a pro se
litigant, a court must afford the non-movant special solicitude.
See Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 477
(2d Cir. 2006). As the Second Circuit has 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. (citations and footnote omitted); see also Sealed Plaintiff
v. Sealed Defendant, 537 F.3d 185, 191-92 (2d Cir. 2008).
B. Exhaustion 15
*5 Defendants contend that the motion for summary
judgment must be granted because Stephanski failed
to exhaust his administrative remedies through available
grievance procedures. See Dkt. No. 39. The PLRA requires
that a prisoner exhaust any administrative remedies available
to him or her before bringing an action for claims arising
out of his or her incarceration. Porter v. Nussle, 534 U.S.
516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); see also
Woodford v. Ngo, 548 U.S. 81, 82, 126 S.Ct. 2378, 165
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L.Ed.2d 368 (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,
122 S.Ct. 983. Further, the exhaustion requirement applies
even where the prisoner seeks relief not available in the
administrative grievance process, such as monetary damages.
Id. at 524, 122 S.Ct. 983. To 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. Jones v. Bock,
549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007)
(internal citation omitted).
Although the Supreme Court has deemed exhaustion
mandatory, the Second Circuit has recognized that “certain
caveats apply.” Ruggiero v. County of Orange, 467 F.3d 170,
175 (2d Cir. 2006) (citation omitted). The Supreme Court of
the United States has held that “[c]ourts may not engraft an
unwritten ‘special circumstances’ exception onto the PLRA's
exhaustion requirement.” Ross v. Blake, ––– U.S. ––––, 136
S. Ct. 1850, 1862, 195 L.Ed.2d 117 (2016). As such, the
special circumstances exception previously promulgated by
the Second Circuit in Hemphill v. New York, 380 F.3d 680,
686 (2d Cir. 2004), is no longer consistent with the statutory
requirements of the PLRA. Williams v. Priatno, 829 F.3d 118,
123 (2d Cir. 2016). 16
Although Ross eliminates the “special circumstances”
exception, courts must still consider the PLRA's “textual
exception to mandatory exhaustion.” Ross, 136 S. Ct. at
1858. 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.
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. at 1859 (citing Booth v. Churner, 532 U.S.
731, 736, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)).
“Next, an administrative scheme might be so opaque that
it becomes, practically speaking, 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. at 1860.
Here, there is no dispute that at all relevant times, DOCCS had
in place a three-step inmate grievance program. N.Y.C.R.R.
tit. 7, § 701.5 (2015). First, the inmate must file a complaint
with an inmate grievance program (“IGP”) clerk within
twenty-one days of the alleged action. Id. at § 701.5(a)
(1). An IGP representative has sixteen calendar days to
informally resolve the issue. Id. at § 701.5(b)(1). If no
informal resolution occurs, the full IGP committee 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. 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.
Id. § 701.5(c)(1). If the superintendent's determination is
unfavorable to the inmate, the inmate may appeal to the
Central Office Review Committee (“CORC”) within seven
days after receipt of the superintendent's determination. Id.
§§ 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).
*6 If it is found that the plaintiff has not exhausted all
available administrative remedies, his or her case generally
should be dismissed without prejudice. Standard Inv.
Chartered, Inc. v. Nat'l Ass'n of Sec. Dealers, Inc., 560 F.3d
118, 124 (2d Cir. 2009) (citation omitted). Since “[f]ailure to
exhaust administrative remedies is often a temporary, curable
procedural flaw,” and “[i]f the time permitted for pursuing
administrative remedies has not expired, a prisoner ... can
cure the defect by exhausting [the available remedies] and
reinstating his suit.” 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)).
Where the grievance involves allegations of employee
excessive force, as alleged by Stephanski, there is an
expedited administrative process. N.Y.C.R.R. tit. 7, §
701.8; see Torres v. Carry, 691 F. Supp. 2d 366, 369-70
(S.D.N.Y. 2009). Complaints and grievances of this nature are
forwarded directly to the superintendent of the facility. Bell
v. Napoli, No. 9:17-CV-850 (ATB), 2018 WL 6506072, at *2
(N.D.N.Y. Dec. 11, 2018). In such cases the superintendent is
required to order an investigation and render a decision within
twenty-five (25) days. Id. § 701(a)-(f). If the superintendent
fails to respond within the twenty-five (25) time limit the
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inmate may appeal his grievance to the CORC. Disagreement
with the superintendent's decision in the expedited review
process also requires an appeal to the CORC. See N.Y.C.R.R.,
title 7,§ 701.8-(g)-(h); see also Espinal v. Goord, 588 F.3d
119, 125 (2d Cir. 2009) (explaining IGP and the expedited
procedure for harassment claims and its appeal mechanism
through the CORC). The Second Circuit has long recognized
this procedure as an “available remedy” for purposes of the
PLRA. See Hall v. County of Saratoga, No. 1:10-CV-1120
(NAM/CFH), 2013 WL 838284, at *1-2 (N.D.N.Y. Mar. 6,
2013).
1. Did Plaintiff Exhaust his Administrative Remedies?
The Court will address whether there is any genuine dispute
that Stephanski failed to exhaust his administrative remedies.
Stephanski does not dispute that a grievance process existed
at Cape Vincent C.F. and that he was aware of the process.
Dkt. No. 39-2 at 58-59. Stephanski sets forth two arguments
to establish that he exhausted his administrative remedies.
First, Stephanski alleges that he verbally complained about
the incident and wrote letters to the Inspector General. Id. at
55-58; Dkt. No. 39-8 at 6. Second, Stephanski alleges that
he exhausted his administrative remedies because he filed
a grievance at Southport C.F. and appealed the unfavorable
determination to CORC. Dkt. No. 44 at 2-3; Dkt. No. 44-4
at 6.
a. Verbal Complaints and Letters
Stephanski testified that he complained to Captain Hanson
and sent letters to the Inspector General regarding the
September 2015 incident. 17 Dkt. No. 39-2 at 55-58. Insofar
as Stephanski argues that he sufficiently exhausted because he
verbally complained to Hansen, “[t]he law is well-settled that
informal means of communicating and pursuing a grievance,
even with senior prison officials, are not sufficient under
the PLRA.” Timmons v. Schriro, No. 14-CV-6606, 2015
WL 3901637, at *3 (S.D.N.Y. June 23, 2015). Similarly,
assuming as true that Stephanski wrote to the Inspector
General, a plaintiff's letters to prison officials or other officials
outside of the grievance chain of command are insufficient
to properly exhaust administrative remedies. See Geer v.
Chapman, No. 9:15-CV-952 (GLS/ATB), 2016 WL 6091699,
at *5 (N.D.N.Y. Sept. 26, 2016), Report-Recommendation
adopted, 2016 WL 6090874 (N.D.N.Y. Oct. 18, 2016) (citing
Macias v. Zenk, 495 F.3d 37, 44-45 (2d Cir. 2007) (“It is
well-settled that writing letters to prison officials, or other
officials, is insufficient to properly exhaust administrative
remedies.”)). Thus, these actions are insufficient to constitute
proper exhaustion.
b. Southport C.F. Grievance
*7 In support of the motion for summary judgment,
Defendants submitted the Declaration of Tami Hartz. Dkt.
No. 39-5. Hartz reviewed Cape Vincent C.F. records and
found that Stephanski submitted no grievances related to
allegations of excessive force on or around September 30,
2015. Id. at ¶ 8. Defendants also provided the Declaration of
Rachael Seguin (“Seguin”), Assistant Director of DOCCS’
Inmate Grievance Program. Dkt. No. 39-6. Seguin avers that
“DOCCS [ ] provides for an expedited procedure for the
review of grievances alleging harassment or misconduct by
DOCCS employees.” Id. at ¶ 6. The procedure allows an
inmate to directly forward the grievance to the Superintendent
of the facility however, the inmate must still appeal the
determination to CORC. Id. Seguin reviewed CORC records
for determinations on any Stephanski grievance appeals and
found that there were none filed at Cape Vincent C.F. with
respect to the September 2015 incident. Id. at ¶ 10.
According to Seguin, “[i]t appears that while at Southport
Correctional Facility, Plaintiff submitted a complaint to the
IGRC dated November 27, 2015 related to the September 30,
2015 incident at Cape Vincent.” Dkt. No. 39-6 at ¶ 11. The
grievance was assigned a number and denied as untimely.
Id. at ¶ 13, 15, 16; see Part I(A)(2). Stephanski's appeals to
the Superintendent and to CORC were denied. Stephanski's
request for an exception to the time limit for filing a grievance
based upon “mitigating circumstances” was also denied. Dkt.
No. 39-8 at 1.
An inmate must submit a grievance within twenty-one
calendar days of the alleged occurrence. See N.Y.C.R.R.
tit. 7, § 701.5(a). “An inmate may request an exception
to the time limit for filing a grievance, ... and the IGP
supervisor may grant an exception to the time limit for
filing a grievance based on mitigating circumstances[.]” Id.
at § 701.6(g). “An exception to the time limit may not
be granted if the request was made more than 45 days
after an alleged occurrence.” Id. “A grievance which is
denied as untimely does not satisfy the PLRA's exhaustion
requirements.” Burrell v. Zurek, No. 9:17-CV-0906 (LEK/
TWD), 2019 WL 5197519, at *15 (N.D.N.Y. June 21, 2019).
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Further, “[f]iling an untimely grievance without subsequently
obtaining a finding of mitigating circumstances is insufficient
to exhaust one's available administrative remedies.” Adams v.
O'Hara, No. 9:16-CV-0527 (GTS/ATB), 2019 WL 652409, at
*7 (N.D.N.Y. Feb. 15, 2019) (finding that the plaintiff failed
to exhaust his administrative remedies because his grievance
was rejected as untimely, and there was no subsequent finding
of mitigating circumstances to excuse that untimeliness). “An
inmate has not exhausted his administrative remedies when
he has requested permission to file an untimely appeal and
been denied by CORC due to an unpersuasive showing of
mitigating circumstances.” Galberth v. Durkin, No. 9:14-
CV-115 (BKS/ATB), 2016 WL 11480153, at *7 (N.D.N.Y.
Apr. 21, 2016) (citations omitted).
Here, Stephanski's grievance filed at Southport C.F. was
denied as untimely and outside the time period in which
to seek an extension. Accordingly, Stephanski failed to
exhaust his Eighth Amendment claim. See LionKingzulu
v. Jayne, 714 F. App'x 80, 82 (2d Cir. 2018) (summary
order) (citing § 701.6(g)(1)(i)(a)); see also Armand v. Mosko,
No. 13-CV-5, 2019 WL 2374948, at *4 (W.D.N.Y. Apr.
9, 2019) (“Plaintiff's belated attempt to file a grievance
from Southport plainly does not satisfy the exhaustion
requirement because the PLRA requires proper exhaustion of
administrative remedies.”). Defendants have met their burden
of demonstrating that a grievance procedure existed, and that
Stephanski failed to exhaust administrative remedies related
to the 2015 use of force incident. As a result, the Court
must assess whether administrative remedies were available
to Stephanski.
2. Availability of Administrative Remedies
*8 Administrative remedies may be unavailable where
“prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860.
However, it is well-settled that where an inmate does not
receive a response to a grievance, the inmate must appeal
to the next level of review notwithstanding the lack of
response at the first level of review. See Khudan v. Lee,
No. 12-CV-8147, 2015 WL 5544316, at *5 (S.D.N.Y. Sept.
17, 2015) (dismissing the plaintiff's complaint because he
failed to appeal to the next level of review after receive no
response on his filed grievance). Thus, if an inmate suspects
that his or her grievances were discarded, he or she must
appeal the grievance despite the lack of response at the first
step of review. Chiarappa v. Meyers, No. 09-CV-607, 2013
WL 6328478, at *5 (W.D.N.Y. Dec. 5, 2013) (“[E]ven if
plaintiff attempted unsuccessfully to file a grievance in a
timely manner, the lack of a response does not relieve him
of the requirement to timely appeal the grievance through all
three steps of the grievance process.”).
However, recent decisions by courts in the Second Circuit
have addressed the availability of administrative remedies
when an inmate's grievance is both unfiled and unanswered.
In Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016), the
plaintiff, like Stephanski, alleged that he attempted to file
a grievance while he was in the SHU. Id. The plaintiff
contended that he gave his grievance to a correction officer
to be filed, and that the correction officer must have
disposed of the grievance because the facility had no record
of the grievance. Id. The Williams Court accepted the
plaintiff's allegation that the correction officer failed to file
the grievance, and held that “[u]nder that circumstance,
the regulations do not adequately outline the process to
appeal or otherwise exhaust administrative remedies. On their
face, the regulations only contemplate appeals of grievances
that were actually filed.” Id. Indeed, the Second Circuit
notes in detail the confusing nature of the timelines set
forth in the DOCCS’ regulations governing the grievance
procedure. See id. at 124-25. Ultimately, the Second Circuit
held that the DOCCS “regulations plainly do not describe a
mechanism for appealing a grievance that was never filed.”
Id. at 126. Following Williams, this Court has denied a
defendant's motion for summary judgment when faced with
an unanswered and unfiled grievance drafted in SHU. See,
e.g., Juarbe v. Carnegie, No. 9:15-CV-01485 (MAD/DEP),
2016 WL 6901277, at *1, 4 (N.D.N.Y. Nov. 23, 2016).
In this case, Hartz avers that inmates in the Cape Vincent
C.F. SHU were provided with inmate grievance complaint
forms and envelopes upon request. Dkt. No. 39-5 at ¶ 4.
Hartz further declared that an IGP staff member was required
to make weekly rounds to SHU cells to collect grievances.
Id. at ¶ 5. Stephanski disputes this account by contending
that he never saw a grievance staff member in the SHU, and
arguing that inmates are not permitted “to give a civilian staff
member any type of envelope, it is against the code of ethics.”
Dkt. No. 44-3 at ¶ 6. Stephanski testified that SHU inmates
handed their grievance to a correction officer and that the
officer “drop[ped] it in the box.” Dkt. No. 39-2 at 59. The next
morning, the mailbox is unlocked and opened by the officer.
Id.
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Stephanski alleges that grievance procedures were not
available to him because he attempted to file two grievances
while confined in the SHU at Cape Vincent C.F., and the
grievances were intercepted “due to the seriousness of the
incident.” Dkt. No. 39-2 at 60-61; Dkt. No. 39-3 at 13-15;
Dkt No. 44-1. Stephanski testified that, while confined in the
Cape Vincent C.F. SHU cell A-1-1, he gave two grievances
to the officer who collected mail. 18 Dkt. No. 39-3 at 14-15.
Stephanski witnessed the officer put the grievances in a
locked box. Id. Stephanski suspects that the grievances were
intercepted and alleges that the “C.O.s” have the only key to
the box and that he “assumes” that Stackle or Payne told the
officer, “[i]f there's any grievances that come through from
Stephanski, take them out.” Dkt. No. 39-2 at 60-61; Dkt. No.
39-3 at 14-15. Stephanski did not receive a response to his
grievances. Dkt. No. 39-3 at 17.
*9 Defendants contend that Stephanski has no direct
knowledge or evidence that any defendant or other person
interfered with his grievances and his only support for this
accusation are his own conclusory allegations. Dkt. No.
39-10 at 10-12; Dkt. No. 45 at 7. Defendants point out that,
“[c]onveniently, Plaintiff does not have any copies of the
grievances he alleges that he filed while at Cape Vincent”
or copies of letters he wrote to the IGRC. Dkt. No. 39-10 at
11. Although Defendants are correct regarding the absence
of copies, Stephanski testified during his deposition that he
attempted to file the grievances while confined in the SHU
and that he did not have carbon paper to make copies. Dkt.
No. 39-2 at 64. Although Stephanski fails to proffer copies
of the grievance(s) he attempted to file at Cape Vincent
C.F., his claims are supported by evidence suggesting that he
attempted to file a grievance at Cape Vincent C.F. including:
(1) Stephanski's deposition testimony; (2) Stephanski's letter
to the Cape Vincent Grievance Committee; (3) Stephanski's
letter to Mrs. Martin; (4) grievance SPT 61355-15; and (5)
Stephanski's Appeal Statement referring the Superintendent's
decision to CORC for review. 19 Dkt. No. 39-8 at 4, 5-7, 11;
see Reid v. Marzano, 9:15-CV-761 (MAD/CFH), 2017 WL
1040420, at *3 (N.D.N.Y. Mar. 17, 2017) (“[I]t is unclear
what evidence Defendants expect Plaintiff to produce of
his grievances that were allegedly discarded by corrections
officers[,]” while “[the] [p]laintiff would have ideally made a
photocopy of his grievances for his own personal file, inmates
in the SHU do not have regular access to the law library[.]”).
Stephanski's allegations of mail tampering are further
supported by the fact that the CORC has no record of any
grievance filed while he was incarcerated at Cape Vincent
C.F. Dkt. No. 39-6 at ¶ 8, 10; Dkt. No. 39-7 at 5; see
Ortiz v. Annucci, No. 17-CV-3620, 2019 WL 1438006, at
*9 (S.D.N.Y. Mar. 29, 2019) (“The absence of any official
records of Plaintiff's grievance or appeal comports with
Plaintiff's assertion that the officer to whom he handed his
grievance failed to file it.”); Zulu v. Barnhart, No. 9:16-
CV-1408 (MAD/DEP), 2019 WL 2997226, at *13 (N.D.N.Y.
Apr. 22, 2019), report-recommendation adopted, 2019 WL
2150628 (N.D.N.Y. May 17, 2019) (“The absence of any
official records of plaintiff's initial attempts to grieve the
incident comports with 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.”).
Upon review of the record, the Court finds sufficient
evidentiary support to withstand Defendants’ motion for
summary judgment for Stephanski's claim that he attempted
to file a grievance at Cape Vincent C.F. See Burroughs v.
Petrone, No. 9:15-CV-818 (DNH/ATB), 2018 WL 7291419,
at *5 (N.D.N.Y. Dec. 27, 2018), Report-Recommendation
adopted, 2019 WL 587090 (N.D.N.Y. Feb. 13, 2019) (finding
that documentary evidence, even though it is evidence that
the plaintiff “apparently had no recollection of during his
deposition,” coupled with the inmate's “necessary reliance on
SHU officers to deliver his grievance,” are some of “several
factors” that the Court “may consider when evaluating the
question of exhaustion” on a motion for summary judgment.)
(citation omitted).
Defendants attempt to distinguish this case from Williams and
cite several cases in support of their position that Stephanski's
failure to submit evidence supporting his claim that his
grievances were intercepted fails to create a genuine issue
of material fact regarding unavailability. See, e.g., Smith v.
Dodge, No. 9:18-CV-1066 (MAD/TWD), 2019 WL 2250552
(N.D.N.Y. May 24, 2019) (granting summary judgment where
the plaintiff failed to respond to the defendant's statement
of material facts or offer any evidence detailing where he
mailed his grievance, when he mailed it, who he gave it
to, or what, if anything, prevented him from timely filing
the grievance); Sankara v. Montgomery, No. 9:16-CV-885
(FJS/TWD), 2018 WL 4610686 (N.D.N.Y. June 25, 2018)
(granting summary judgment where the plaintiff failed to
respond to the defendants’ statement of material facts and
“submitted no documentary evidence whatsover that supports
his conclusory assertions that he submitted grievances [...] or
demonstrates any follow up on his part when he allegedly
received no response.”); Grayson v. Courtney, No. 9:16-
CV-1118 (GLS/ATB), 2018 WL 6933296 (N.D.N.Y. Dec.
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3, 2018) (granting summary judgment and finding no issue
of material fact as to exhaustion because the only evidence
on record was the plaintiff's deposition testimony regarding
his efforts to file grievances); Khudan, 2016 WL 4735364
(finding no issue of material fact as to whether the plaintiff
appealed to CORC as the plaintiff's affidavit made “no
mention of submitting an appeal to the CORC,” and at his
deposition the plaintiff “asserted that he sent an appeal of
his grievance to ‘Albany,’ ” but “failed to specify where
in Albany he sent his grievance and fails to provide any
other details, including the approximate date he submitted his
appeal and whether he properly used a ‘notice of decision to
appeal’ form.”); Nelson v. Artus, No. 14-CV-6634, 2016 WL
1023324 (W.D.N.Y. Mar. 8, 2016) (finding no material issue
of fact on exhaustion where the “[p]laintiff had the ability to
file an appeal regarding his grievance in this case, but chose
not to do so. There is no allegation – much less any evidence
– that [the p]laintiff was in any way prevented from accessing
the grievance process as it relates to this incident, and there are
no special circumstances alleged or proven that would justify
the [p]laintiff[’]s failure to comply with DOCCS’ grievance
procedures.”). However, there are discernable differences
between the facts in those cases, and the facts at hand. Here,
Stephanski properly and timely responded to Defendants’
Motion for Summary Judgment and Statement of Material
Facts, testified under oath (on two occasions) regarding his
efforts to file grievances at Cape Vincent C.F., and submitted
some corroborating documentary evidence.
*10 Defendants also argue that, even assuming Stephanski
attempted to file grievances at Cape Vincent C.F., he has
not established that the grievance process was unavailable
because he made no effort to follow up on the status of the
grievances until “long after the 21-day deadline and long
after he was transferred to Southport C.F.” and “nearly 60
days after the alleged incident occurred.” Dkt. No. 39-10 at
13; Dkt. No. 45 at 6. However, the record contains credible
evidence suggesting that, from September 30, 2015 until
December 14, 2015, Stephanski made a good-faith effort
to exhaust his claims. Stephanski testified that he did not
follow up on the status of his grievances while he was
in the SHU at Cape Vincent C.F. because he was “out
of there pretty quick.” Dkt. No. 39-3 at 16. According to
DOCCS’ records, Stephanski was “referred” to Southport
C.F. on October 26, 2015, “effective” November 6, 2015.
Dkt. No. 39-4 at 7. Upon arriving at Southport C.F., he
wrote to the grievance committee at Cape Vincent C.F. Dkt.
No. 39-8. On November 27, 2015, before he received a
response to that correspondence, Stephanski filed a grievance
at Southport C.F. Dkt. No. 39-8 at 5-6. When the grievance
was denied without a grievance number, Stephanski re-
submitted the grievance. After the grievance was accepted
and denied, Stephanski appealed the IGRC decision to the
Superintendent, and appealed the Superintendent's decision
to CORC. Accordingly, the Court finds that Stephanski has
credibly documented his efforts to file grievances and to
follow up in a timely manner. See Zulu, 2019 WL 2997226, at
*13 (excusing the plaintiff from the exhaustion requirement
due to his “persistent efforts to follow up, re-file, and appeal
the grievances”).
Defendants next argue that, even assuming Stephanski's
grievance was intercepted, the motion must be granted
because he failed to complete “steps two and three” of the
grievance process. Dkt. No. 45 at 10. Stephanski plainly knew
how to file a grievance, and proves as much where he states
that he twice attempted to give his grievance regarding the
September 30, 2015 incident to a correction officer while he
was in the SHU. Dkt. No. 39-3 at 14-15. However, it is clear to
the Court from Stephanski's deposition testimony that there is
a genuine issue of material fact whether knew how to proceed
when he never received a response. During his deposition,
Stephanski testified:
Q. So although you never heard back about those two
Cape Vincent grievances did you ever appeal those
grievances?
A. Well you can't appeal if you don't get the grievance back.
Dkt. No. 39-3 at 17.
Plaintiff's confusion about the process is supported by his
follow up letter to the Cape Vincent Grievance Committee
and Hartz's brief response. Dkt. No. 39-8 at 10-11. Hartz's
response reads, “[t]his is in response to your note received on
11/30/15. A review of the IGRC log reveals there is no record
of a grievance from you in 2015.” Id. at 10. Hartz did not
provide any information about how to pursue administrative
remedies when a grievance is unfiled and unanswered. See
Woodward v. Lytle, No. 9:16-CV-1174 (NAM/DEP), 2018
WL 4643036, at *4 (N.D.N.Y. Sept. 27, 2018) (finding that
the grievance process was unavailable as the process to appeal
an unanswered grievance is prohibitively opaque and noting
that the defendants, in response to an inquiry by the plaintiff,
failed to explain that the plaintiff “had to appeal the non-
response to his alleged unfiled grievance to the CORC,” but
was told that Directive 4040 “makes no provision for an
inmate to refer grievances directly to the Central Office, and
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that specific grievance concerns should be directed to the IGP
Supervisor for the most expeditions means of resolution.”).
Moreover, Stephanski did not receive Hartz's memorandum
until November 30, 2015, after the twenty-one day deadline
and the forty-five day limit on requesting an extension of
time to file a grievance based on mitigating circumstances.
See Hamlet v. Stotler, No. 9:17-CV-0939 (GLS/TWD), 2018
WL 2729263, at *8 (N.D.N.Y. Apr. 27, 2018) (reasoning
that the IGP Supervisor's response to the plaintiff's inquiry
that no grievances had been filed, did not render Williams
inapplicable when it was issued beyond the twenty-one day
deadline and forty-five day limit on requesting an extension
based upon mitigating circumstances).
Defendants fail to set forth evidence showing that Stephanski
received information about how to pursue administrative
remedies when a grievance is unfiled and unanswered. See,
e.g., Juarbe, 2016 WL 6901277, at *1 (“In Williams, 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.”). Consequently, this Court reaches
the same conclusion as the Second Circuit in Williams.
Viewing the facts in the light most favorable to Stephanski,
the record suggests that he submitted grievances while
confined in the Cape Vincent C.F. SHU, but the grievances
were unfiled and unanswered, creating an issue of material
fact as the availability of the grievance process, and, thus,
whether administrative remedies were available to him. See
Williams, 829 F.3d at 126 (concluding that “the process to
appeal an unfiled and unanswered grievance is prohibitively
opaque, such that no inmate could actually make use of it.”);
Thaxton v. Simmons, No. 9:10-CV-1318 (MAD/RFT), 2013
WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013) (“[A] question
of fact exists as to whether [p]laintiff never filed his initial
grievance on April 29, as [d]efendants claim, or that, as
[p]laintiff claims, he filed a timely grievance that was lost or
tampered with by [d]efendants. Such credibility assessments
are to be resolved by a trier of fact.”). Accordingly, it
is recommended that Defendants’ motion for summary
judgment, insofar as it raises the affirmative defense of
nonexhaustion, should be denied.
III. CONCLUSION
*11 WHEREFORE, based on the findings set forth above,
it is hereby:
RECOMMENDED, that Defendants’ motion for summary
judgment (Dkt. No. 39) be: DENIED; and it is further
ORDERED, that copies of this Report-Recommendation and
Order be served on the parties in accordance with the Local
Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen
(14) days within which to file written objections to the
foregoing report. Such objections shall be filed with the Clerk
of the Court. FAILURE TO OBJECT TO THIS REPORT
WITHIN FOURTEEN (14) DAYS WILL PRECLUDE
APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89
(2d Cir. 1993) (citing Small v. Secretary of Health and Human
Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1);
FED. R. CIV. P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2020 WL 806331
Footnotes
1 This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b)
and N.D.N.Y.L.R. 72.3(c).
2 The parties provided exhibits with their submissions, without objection or challenges to the authenticity of
any of the opposing parties’ documents. Therefore, to the extent that the “facts” asserted by the parties are
supported by the record, the undersigned will consider the facts and relevant exhibits or documents in the
context of the within motion. See U.S. v. Painting known as Hannibal, No. 07-CV-1511, 2010 WL 2102484,
at *1, n. 2 (S.D.N.Y. May 18, 2010) (citing Daniel v. UnumProvident Corp., 261 F. App'x 316, 319 (2d Cir.
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2008) (summary order) (“[A] party is not required to authenticate documents on a summary judgment motion
where, as here, authenticity is not challenged by the other party)). In light of the procedural posture of the
case, the recitation of facts is derived from the record now before the Court, with all inferences drawn and
ambiguities resolved in non-moving party's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
3 Local Rule 7.1(a)(3) states:
Summary Judgment Motions
Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material
Facts shall set forth, in numbered paragraphs, each material fact about which the moving party contends
there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the
fact is established. The record for purposes of the Statement of Material Facts includes the pleadings,
depositions, answers to interrogatories, admissions and affidavits.
The opposing party shall file a response to the Statement of Material Facts. The non-movant's response
shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's
assertions in matching numbered paragraphs. Each denial shall set forth a specific citation to the record
where the factual issue arises. The non-movant's response may also set forth any additional material facts
that the non-movant contends are in dispute. Any facts set forth in the Statement of Material Facts shall
be deemed admitted unless specifically controverted by the opposing party.
N.D.N.Y. L.R. 7.1(a)(3).
4 The Court's citation to page numbers in materials filed on the docket refer to the pagination generated by
CM/ECF located at the header of each page.
5 Stephanski had not met Payne or Stackle before the September 30, 2015 incident. Dkt. No. 39-2 at 32-33.
6 Stephanski was confined at Cape Vincent C.F. from March 2015 until November 2015. Dkt. No. 39-4 at 7.
7 Defendants dispute this contention.
8 The letter, attached as an exhibit to Defendants’ motion, is undated. Dkt. No. 39-8 at 11.
9 Stephanski proffers a copy of the grievance filed at Southport C.F. Dkt. No. 44-5 at 6-7. Defendants also
provided a copy of the grievance. Dkt. No. 39-8 at 5-6.
10 The record does not contain a copy of this decision.
11 The signature of the “Report Writer” is illegible. Dkt. No. 39-8 at 9. Under the heading, “Name of Person(s)/
Title and/or Department Involved” is the name “T. Hartz IGPS”. Id.
12 § 701.6(g)(i)(i)(a) provides:
Time limit exceptions and extensions.
(1) Time limit for filing a grievance or appeal:
(i) An inmate may request an exception to the time limit for filing a grievance, or for filing an appeal to the
superintendent or to CORC. Such a request shall be in writing and shall be submitted to the grievance
clerk with the grievance or appeal the inmate wishes to file.
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(a) The IGP supervisor may grant an exception to the time limit for filing a grievance based on mitigating
circumstances (e.g., timely attempts to resolve a complaint informally by the inmate, etc.). An exception to
the time limit may not be granted if the request was made more than 45 days after an alleged occurrence.
N.Y.C.R.R. tit. 7, § 701.6
13 In the Answer, Defendants pleaded, inter alia, the affirmative defense that Stephanski failed to exhaust his
administrative remedies. Dkt. No. 18 at ¶ 19.
14 The November 2018 deposition was continued due to time constraints. Dkt. No. 39-3 at 5.
15 Unpublished decisions cited herein have been provided to plaintiff pro se.
16 In Williams v. Priatno, the Second Circuit debated Ross’ effect on Hemphill’s estoppel exception. See
Williams, 829 F.3d at 123. The Williams Court stated that “Ross largely supplants our Hemphill inquiry by
framing the exception issue entirely within the context of whether administrative remedies were actually
available to the aggrieved inmate.” Id. (citing Ross, 136 S.Ct. at 1858-59).
17 Stephanski has not proffered evidence of such letters.
18 This officer is not named as a defendant herein. Dkt. No. 39-3 at 15.
19 Defendants do not contest the admissibility of the documents Stephanski produced and have annexed copies
of the same documents to their motion papers.
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2020 WL 777268
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Paul STEPHANSKI, Plaintiff,
v.
Randy ALLEN, Thomas Stackle
and Brandon Payne, Defendants.
9:18-cv-0076 (BKS/CFH)
|
Signed 02/18/2020
Attorneys and Law Firms
Plaintiff, pro se, Paul Stephanski, 99-B-2439, Marcy
Correctional Facility, PO Box 3600, Marcy, NY 13403.
For Defendants:, Letitia James, Attorney General of the State
of New York, Aimee Cowan, Assistant Attorney General, of
Counsel, 300 South State Street, Suite 300, Syracuse, NY
13202.
MEMORANDUM-DECISION AND ORDER
Hon. Brenda K. Sannes, United States District Judge:
*1 Plaintiff Paul Stephanski, a New York State inmate,
commenced this action asserting claims under 42 U.S.C. §
1983 arising out of his incarceration at the Cape Vincent
Correctional Facility. (Dkt. No. 1). On June 26, 2019,
Defendants filed a motion for summary judgment seeking
dismissal of the complaint based upon Plaintiff's failure
to exhaust his administrative remedies. (Dkt. No. 39).
Plaintiff filed an opposition on August 26, 2019, to which
Defendants replied on August 30, 2019. (Dkt. Nos. 44, 45).
This matter was referred to United States Magistrate Judge
Christian F. Hummel, who issued a Report-Recommendation
on January 22, 2020, recommending that Defendants’ motion
for summary judgment be denied. (Dkt. No. 48). Magistrate
Judge Hummel concluded that there is “an issue of material
fact as [to] the availability of the grievance process, and, thus,
whether administrative remedies were available” to Plaintiff.
(Id. at 24). Magistrate Judge Hummel advised the parties that
under 28 U.S.C. § 636(b)(1), they had fourteen days within
which to file written objections to the report, and that the
failure to object to the report within fourteen days would
preclude appellate review. (Id. at 25).
No objections have been filed. As no objections to the
Report-Recommendation have been filed, and the time for
filing objections has expired, the Court reviews the Report-
Recommendation for clear error. See Petersen v. Astrue, 2
F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R. Civ. P.
72(b) advisory committee's note to 1983 amendment. Having
reviewed the Report-Recommendation for clear error and
found none, the Court adopts the Report-Recommendation in
its entirety.
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 48)
is ADOPTED in its entirety; and it is further
ORDERED that Defendants’ motion for summary judgment
(Dkt. No. 39) is DENIED; and it is further
ORDERED that the Court will schedule an evidentiary
exhaustion hearing; and it is further
ORDERED that the Clerk serve a copy of this Order upon
the parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 777268
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