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 et al.,
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
DAVID N. HURD
United States District Judge
ORDER ON REPORT & RECOMMENDATION
On December 26, 2024, pro se plaintiff Mamadou Barry (“plaintiff”), an
inmate in the custody of the New York State Department of Corrections and
Community Supervision (“DOCCS”), filed this 42 U.S.C. § 1983 action alleging
that various DOCCS officials violated his rights under Eighth and Fourteenth
Amendments. Dkt. No. 1. Along with his complaint, plaintiff moved for leave
to proceed in forma pauperis (“IFP Application”). Dkt. Nos. 2, 3.
On January 30, 2025, this Court granted plaintiff’s IFP Application and,
after conducting an initial review of the pleading, determined that plaintiff’s §
1983 claims against defendants McIntosh, Frenya, Harrigan, Gadway survived
initial review and required a response. Dkt. No. 5.
Case 9:24-cv-01581-DNH-ML Document 45 Filed 02/26/26 Page 1 of 3

- 2 -
On August 18, 2025, defendants moved for pre-answer summary judg-
ment or, in the alternative, to partially dismiss plaintiff’s complaint. Dkt. No.
30. 	Briefly stated, defendants principally argued that plaintiff failed to ex-
haust his administrative remedies before filing suit. 	Id. 	The parties fully
briefed the motion. Dkt. Nos. 37, 41.
On January 21, 2026, U.S. Magistrate Judge Miroslav Lovric advised by
Report & Recommendation (“R&R”) that defendants’ motion for summary
judgment be granted. Dkt. No. 42. As Judge Lovric explained, there was evi-
dence indicating that plaintiff had filed a grievance (CL-20547-22) but this
grievance did not make any allegations against the named defendants. Id.
Instead, the record evidence showed that plaintiff did not make any ad-
ministrative complaints that included allegations against any of the named
defendants until he submitted his CORC appeal, which, for reasons he ex-
plained, is not the proper way to pursue a grievance. Id. at 21. Because plain-
tiff’s opposition submissions failed to place this fact issue in dispute, defend-
ants were entitled to summary judgment.
Plaintiff has lodged objections. Dkt. No. 43. Broadly speaking, plaintiff
rehashes his claims (raised below) that he grieved these claims, or that the
grievance process was unavailable to him. See id. Defendants have responded
in opposition. 	Dkt. No. 44. 	There, they point out that plaintiff’s grievance—
which was filed but failed to identify defendants or make allegations against
Case 9:24-cv-01581-DNH-ML Document 45 Filed 02/26/26 Page 2 of 3

- 3 -
them—undisputedly worked its way through the grievance system at the facil-
ity in question. 	See id. 	In other words, the grievance system was available
and functioning—plaintiff just did not exhaust these claims. Id.
Upon de novo review, the R&R is accepted and will be adopted. 	See 28
U.S.C. § 636(b)(1)(C).
Therefore, it is
ORDERED that
1. The Report & Recommendation (Dkt. No. 42) is ACCEPTED;
2. Defendant’s motion for summary judgment (Dkt. No. 30) is
GRANTED; and
3. Plaintiff’s operative complaint (Dkt. No. 1) is DISMISSED.
The Clerk of the Court is directed to terminate the pending motions, enter
a judgment accordingly, and close the file.
IT IS SO ORDERED.
Dated: February 26, 2026
Utica, New York.
Case 9:24-cv-01581-DNH-ML Document 45 Filed 02/26/26 Page 3 of 3