Angell v. Does 1-10 et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
TAYLOR ANGELL,
Plaintiff, 	No. 9:24-CV-01592
v. 	(AMN/PJE)
ETHAN SCHMID, ROBERT
MANTZOURATOS,
Defendants.
_____________________________________
APPEARANCES: 	OF COUNSEL:
Taylor Angell
44751-509
McKean Federal Correction Institution
Inmate Mail/Parcels
P.O. Box 8000
Bradford, Pennsylvania 16701
Plaintiff pro se
Hancock Estabrook, LLP 	FRANK W. MILLER, ESQ.
1800 AXA Tower I
100 Madison Avenue
Syracuse, New York 13202
Attorneys for defendants
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER1
Plaintiff pro se Taylor Angell, who, at all relevant times, was incarcerated at
Delaware County Jail, commenced this action on December 20, 2024, with the filing of a
complaint and of an amended complaint on April 15, 2025. See Dkt. No. 1 (“Compl.”),
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).
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Dkt. No. 11 (“Am. Compl.). Presently before the undersigned is defendants Robert
Mantzouratos and Ethan Schmid’s Motion for Summary Judgment pursuant to Federal
Rule of Civil Procedure (“Fed. R. Civ. P.”) 56.2 Plaintiff opposed. See Dkt. No. 26.
Defendants replied. See Dkt. No. 29.3 For the reasons that follow, it is recommended
that defendants’ Motion for summary Judgment be granted.
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).
2 Defendants also sought a stay of the answer deadline pending a decision on this motion, which the
Court granted. See Dkt. No. 23.
3 Following review of plaintiff’s Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B), 1915A(b), the
Court determined the surviving claims to be excessive force and deliberate medical indifference against
defendants Schmid and Mantzouratos. See Dkt. No. 14 at 14.
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After the moving party has met its initial burden, the nonmoving party “must do
more than simply show that there is some metaphysical doubt as to the material facts”
to defeat summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). The nonmoving party may not rely on “mere conclusory
allegations, speculation, or conjecture,” Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir.
2020), and must present more than a mere “scintilla of evidence” to support its claims,
Anderson, 477 U.S. at 252. At the same time, a court must resolve all ambiguities and
draw all inferences in favor of the nonmoving party. See Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S 133, 150 (2000). The Court “may not make any
credibility determinations or weigh the evidence.” Id. Thus, a court's duty in reviewing a
motion for summary judgment is “carefully limited to discerning whether there are any
genuine issues of material fact to be tried, not to deciding them.” Gallo v. Prudential
Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir. 1994).
Where, as here, a plaintiff proceeds pro se, the court must grant him “special
solicitude,” construe his submissions “liberally,” and read such submissions “to raise the
strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 477 (2d Cir. 2006) (internal quotation marks omitted) (citing Ruotolo v. I.R.S., 28
F.3d 6, 8 (2d Cir. 1994)). This is because “a pro se litigant generally lacks both legal
training and experience and, accordingly, is likely to forfeit important rights through
inadvertence if [ ] not afforded some degree of protection.” Tracy v. Freshwater, 623
F.3d 90, 101 (2d Cir. 2010) (citing Triestman, 470 F.3d at 475). However, the Second
Circuit has cautioned district courts that they “cannot read into pro se submissions
claims that are not consistent with the pro se litigant's allegations or arguments that the
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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. Facts4
Plaintiff alleges that on November 29, 2023, defendants Schmid and
Mantzouratos pinched him on the back of his arms and slammed plaintiff into a concrete
wall and fence. See Am. Compl. at 3-4. Plaintiff asserts that after being placed in
handcuffs, Mantzouratos punched plaintiff in the face, and then, along with Schmid
sprayed him repeatedly in the face and mouth with Oleoresin Capsicum Spray (“pepper
spray”). See id. at 3. While plaintiff was on the ground and handcuffed, both
defendants “began stomping” on plaintiff and “kicked and punched” plaintiff “for what
seemed like an extremely long time.” Id. at 4. Schmid sprayed plaintiff in his mouth
while Mantzouratos “had his knee on [plaintiff]’s neck,” and the pair “violently assaulted
plaintiff” all the while plaintiff complaining that he “couldn’t breathe.” Id.
4 In their Memorandum of Law, in a section titled, Statement of Material Facts, defendants provide, “[t]he
material facts of this case are laid out in full within the defendants[’] statement of material facts.” Dkt. No.
19-1. However, defendants have not submitted a separate statement of material facts in support of their
motion. See N.D.N.Y. L.R. 7.1(b)(3); 56.1(a) (“Failure of the moving party to submit an accurate and
complete Statement of Material Facts shall result in a denial of the motion.”). Although the Local Rule
dictates dismissal where the moving party does not submit “an accurate and complete Statement of
Material Facts,” the undersigned determines that dismissal, here is not warranted, for two reasons. First,
although limited, the memorandum of law does contain a statement of material facts, in response, plaintiff
also failed to submit a statement of material facts, see N.D.N.Y. L.R. 56.1(b); second, the merits
underlying plaintiff’s claims are not at issue in this motion – it is based entirely on exhaustion, the facts of
which are detailed in the memorandum of law and attorney affidavit; and (3) judicial efficiency warrants
against dismissal of this motion without prejudice to refiling, the undersigned exercises the discretion to
overlook both parties’ violations of the Local Rule. Parties are advised that strict compliance with Local
and Federal Rules is required and any future violations will not likely be so excused. See generally Ream
v. Hill, 18-CV-7462 (VEC), 2018 WL 3579846, at *1 n.4 (S.D.N.Y. July 28, 2018) (noting that the
defendants failed to submit a Rule 56.1 statement, observing the consequences the Court could have
imposed for that violation, but “electing not to do so and warning the defendants that “future failure to
abide by the rules of the Court will not be excused.”).
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Thereafter, defendants walked plaintiff to the front of the jail and both slammed
plaintiff’s “face into every doorframe on the way to the front of the jail, while telling them
what they just did to him,” stating that plaintiff “was ‘cheeking’ his medication and writing
Schmid up on unknown dates.” Dkt. No. 11 at 4.
Plaintiff further contends that defendants afforded him “exactly 60 seconds” to
attempt to clean the pepper spray off of his face and body and “was told to finish
washing himself in the cell.” Am. Compl. at 5. However, defendants shut off the water
to his cell’s sink, allowing him only toilet water to attempt to clean his eyes, face, and
body. 	See id.
IV. Arguments5
Defendants argue that plaintiff did not exhaust his administrative remedies, and,
therefore, his complaint should be dismissed. See Dkt. No. 19-1 at 5. They point out
that plaintiff’s operative pleading does not indicate that he exhausted his administrative
remedies nor does it provide a reason for failing to exhaust. See id. Thus, they argue
that dismissal of the complaint is warranted.
In support of their motion defendants provide an affidavit from Sergeant Ivan
Brkaric, First Sargeant of the Delaware County Sheriff’s Office. See Dkt. No. 19-5 at 1.
Brkaric affirms that, at all relevant times, he served as the Grievance Coordinator. See
5 In the Statement of Facts within defendants’ Memorandum of Law, defendants note that plaintiff brings
his excessive force and “denial of proper medical care” claims under the Eighth Amendment. See Dkt.
No. 19-1. In the Court’s March 3, 2023, Decision & Order, the Court observed that “it is unclear whether
plaintiff’s claims arise under the Eighth or Fourteenth Amendment because it is not clear from the
complaint whether plaintiff was confined at Delaware C.J. as a convicted and sentenced prisoner or as a
pretrial detainee at the time of the alleged events,” noting that if plaintiff as convicted, his claims would be
covered by the Eighth Amendment and if not, by the Fourteenth Amendment. Dkt. No. 7 at 9. Brkaric’s
affidavit states that plaintiff “was a federal detainee assigned to the Delaware County Jail.” Dkt. No. 19-5
at 1. However, as the undersigned concludes that plaintiff failed to exhaust his administrative remedies
and that he has failed to demonstrate unavailability, the merits are not reached, and, thus, the applicable
amendment does not alter the undersigned’s analysis.
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id. Brkaric states that plaintiff “was a federal detainee assigned to the Delaware County
Jail.” Id. Brkaric affirms that he “made a diligent search of the records of the Delaware
County Correctional Facility and f[ou]nd no grievance whatsoever filed” regarding the
subject matter and defendants underlying this action. See id. at 2.
Brkaric states that Delaware County Correctional Facility had at all times a “well-
defined and operating grievance procedure in the facility.” Id. Brkaric affirms that
plaintiff was provided an “Inmate Rule book upon intake” and “he signed for the same”
on September 13, 2023. Id. at 2. “Upon information and belief, Mr. Angell knows how
to access the grievance process and how to pursue the same,” noting that plaintiff “filed
other grievances with this facility,” and that those grievances were “unrelated to and
prior to the events” underlying the amended complaint. Id. Brkaric provides that
grievance forms were “readily available” to plaintiff “upon request[,]” but “there is no
evidence of Mr. Angell having requested a grievance form on or after November 20,
2023.” Id.
Plaintiff concedes that he did not exhaust his administrative remedies with
respect to the matters underlying this action. See Dkt. No. 26. However, plaintiff
contends that administrative remedies were unavailable to him due to intimidation. See
id. Plaintiff argues that on November 29, 2023, “the defendants made numerous
remarks, during their vicious physical attack on him . . . that his attack was payback due
to his having filed previous grievances.” Id. at 2. Plaintiff elaborates, as he was being
attacked “defendants made clear references to my previous filing of grievances against
jail staff, as a reason for their vicious attack against me.” Id. at 5.
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Plaintiff contends, “[d]ue to the defendants[’] remarks and assault, Mr. Angell
feared retaliation if he tried to file another grievance.” Dkt. No. 26 at 2. Plaintiff
contends, “if the defendants had not assaulted and sprayed him as punishment for filing
past grievances, he would not have hesitated to file a new grievance” and that his
failure to exhaust “is due solely to the defendants themselves – making exhustion (sic)
impossible due to fear of further physical assault and retaliation.” Id. at 3. Plaintiff
further argue, because of his “fears of retaliation and future physical attacks, by the
defendants on the face of their comments his prior grievance use during their violent
attack on him . . . , any request for a grievance after November 29, 2023 was futile and
potentially dangerous.” Id. at 3. He contends he was also in fear of “further physical
assaults” from both “defendants and their co-workers” were he to attempt to utilize the
grievance process. See id. at 6. Plaintiff asserts that because of “defendants[’] actions
and statements on November 29, 2023, during their assault against me, it was my belief
that if I asked for any more grievance forms, I would be attacked again by staff or killed,
in efforts to punish me for attempting to use the grievance process.” Id.
Plaintiff points out that, despite defendants’ claims otherwise, he did not sign the
intake form which lists him being provided, inter alia, with a rule book. Dkt. No. 26 at 6;
Dkt. No. 19-6.
In reply, defendants argue that plaintiff’s opposition regarding unavailability of
administrative remedies due to fear of physical retaliation “consists of nothing more than
generalized, non-specific conclusory statements regarding an undefined ‘threat’” and is
“unsupported by any evidence.” Dkt. No. 29 at 4.
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Defendants contend, and submit a supplemental affidavit from Brkaric to support
their argument, that plaintiff filed only two grievances while at Delaware County Jail “that
were not controversial and not addressed to any individual officer.” Dkt. No. 29 at 4;
Dkt. No. 29-6. Further, defendants assert that the services plaintiff requested in that
grievance “were provided to him,” and plaintiff “signed off on the grievance,
acknowledging that he was satisfied with the services provided.” Id. As to the second
grievance, plaintiff requested additional recreation and exercise time in the yard, and
that grievance “was resolved favorably with Mr. Angell accepting the outcome.” Id.
Defendants argue, and provide affidavits from Mantzouratos and Schmid so attesting,
that neither defendant was aware of plaintiff’s prior two grievances. See id. at 4; Dkt.
Nos. 29-9, 29-10.
Defendants further argue that the two grievances plaintiff filed “do not identify any
specific jail staff as having offended or in any manner harmed the plaintiff” and neither
grievance “identified any individual officer by name.” Dkt. No. 29 at 5. Defendants
assert that plaintiff did not provide what the “clear references were to his grievous
grievances” or how “individuals (presumably the two defendants) threatened him.” Id.
Defendants opine that unlike in Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004) which
plaintiff cites in support of his unavailability argument, “[n]owhere in the complaint was
there any reference to a grievance” or “any allegation that the purported assault was
due to his having filed prior grievances.” Id. at 7.6 Further, defendants point out that
plaintiff’s amended complaint suggests that he was assaulted because defendants
6 The undersigned observes that Hemphill has been largely abrogated by Ross v. Blake, 578 U.S. 632
(2016). See Williams v. Correction officer Priatno, 829 F.3d 118 (2d Cir. 2016). Regardless, neither
parties’ review of Hemphill impacts the undersigned’s decision one way or the other.
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believed he was hiding his medications in his cheek and bringing them back to his
housing unit. See id.
In their affidavits, Mantzouratos and Schmid both argue that they were “wholly
unfamiliar” with plaintiff prior to November 29, 2023, did not know about his grievance
activity, did not make any threats nor remarks to plaintiff about his grievance activity, nor
did they hear any other corrections staff do so. See Dkt. Nos. 29-9 at 1-2; 29-10 at 1-2.
They affirm that plaintiff was released from the Delaware County Jail on December 6,
2023. See id. at 2
V. Discussion
The Prison Litigation Reform Act (“PLRA”) requires that an incarcerated
individual must exhaust any administrative remedies available to him or her before
bringing an action for claims arising out of his or her incarceration. See Porter v.
Nussle, 534 U.S. 516, 524 (2002); see also Woodford v. Ngo, 548 U.S. 81 (2006). The
exhaustion requirement applies “to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter, 534 U.S. at 532. Further, the exhaustion
requirement applies even where the prisoner seeks relief not available in the
administrative grievance process, such as monetary damages. See id. at 524. To
exhaust administrative remedies, the inmate must complete the full administrative
review process set forth in the rules applicable to the correctional facility in which he or
she is incarcerated. See Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation
omitted).
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Although the Supreme Court of the United States has deemed exhaustion
mandatory, the Second Circuit has recognized that “certain caveats apply.” Ruggiero v.
Cty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citation omitted). In Ross v. Blake, the
Supreme Court held in that “[c]ourts may not engraft an unwritten ‘special
circumstances’ exception onto the PLRA’s exhaustion requirement.” Ross v. Blake, 578
U.S. 632, 635 (2016). Although Ross eliminated the “special circumstances” exception,
courts must still consider the PLRA’s “textual exception to mandatory exhaustion.”
Ross, 879 U.S. at 637. Under this exception, courts must determine whether
administrative remedies were “available” to a prisoner. Id. The Supreme Court
identified three circumstances where administrative remedies may be unavailable to a
prisoner. Id. at 633. First, “an administrative procedure is unavailable when (despite
what regulations or guidance materials may promise) it operates as a simple dead end
— with officers unable or consistently unwilling to provide any relief to aggrieved
inmates.” Id. (citing Booth v. Churner, 532 U.S. 731, 736, 738 (2001)). “Next, an
administrative scheme might be so opaque that it becomes, practically speaking,
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.
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.” Johnson v. Mason, No. 9:22-CV-00590 (MAD/CFH), 2023 WL
10365204, at *6 (N.D.N.Y. Dec. 27, 2023), report and recommendation adopted, No.
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9:22-CV-590 (MAD/CFH), 2024 WL 396679 (N.D.N.Y. Feb. 2, 2024)7 (quoting Martinaj
v. Uhler, No. 9:18-CV-257 (BKS/DJS), 2021 WL 3793769, at *7 (N.D.N.Y. Aug. 26,
2021) (citing Grafton v. Hesse, 783 F. App’x 29, 31 (2d Cir. 2019) (summary order)).
This Circuit has “held that verbal and physical threats of retaliation, physical assault,
denial of grievance forms or writing implements, and transfers constitute such
affirmative action.” Johnson, 2023 WL 10365204, at *6 (quoting Amador v. Andrews,
655 F.3d 89, 103 (2d Cir. 2011)).
Generally, if it is found that the inmate has not exhausted all available
administrative remedies, his or her case should be dismissed without prejudice unless
the time for permitting administrative remedies has expired. See Standard Inv.
Chartered, Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 560 F.3d 118, 124 (2d Cir. 2009)
(citation omitted); see Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003) (amended 2004)
(quoting Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999)). DOCCS is required
to maintain grievance files for the current calendar year and the previous four calendar
years whenever an incarcerated individual appeals a grievance to CORC. See 7
N.Y.C.R.R. § 701.6(k)(3).
As exhaustion is an affirmative defense, a moving party bears the burden of
proof that showing that a plaintiff failed to exhaust his administrative remedies, and in
response, a plaintiff bears the burden of demonstrating either exhaustion or
unavailability. 	See, e.g., Booker v. Flint, No. 9:22-CV-600 (AJB/DJS), 2025 WL
1663999, at *3 (N.D.N.Y. June 12, 2025), judgment entered, No. 9:22-CV-600
(AJB/DJS), 2025 WL 1664022 (N.D.N.Y. June 12, 2025).
7 The Court has provided plaintiff pro se with copies of unpublished cases cited herein.
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Here, plaintiff does not contest that there existed a grievance procedure at
Delaware County Jail or that he failed to exhaust his administrative remedies. See Dkt.
No. 26. Rather, he argues that his exhaust his administrative remedies were
unavailable due to intimidation. See generally id. Defendants argue that plaintiff’s
unavailability argument, raised for the first time in his opposition to defendants’ motion
for summary judgment, is conclusory and does not suffice to defeat summary judgment.
See generally Dkt. No. 29. The undersigned agrees with defendants.
Plaintiff makes a singular comment in his amended complaint that slightly hints at
intimidation; however, this statement is plainly insufficient. He contends that “various
other defendants told him,” while taking plaintiff to decontaminate himself, that plaintiff
“‘shouldn’t have written them up,’ or told ‘Albany that [they] had no hot water for 3
weeks.’” Am. Compl. at 6. 	Plaintiff does not contend that Schmid or Mantzouratos
made either of these statements. See id. Moreover, plaintiff provides no explanation
about what he meant by “writing up” jail staff or complaining to “Albany “about a lack of
hot water. See id. Indeed, defendants submitted all of the grievances plaintiff filed
during his incarceration at Delaware County Jail and neither of them were against
Schmid or Mantzouratos nor did they complain about hot water. See Dkt. Nos. 29-7,
29-8. One grievance identified no staff members and requested that teeth be pulled
and complained of lack of access to sufficient dental care. See id. at 1. The result of
that grievance was that the dental appointment requested was scheduled. See id. The
second grievance also named no staff members and sought full access to outdoor
recreation, and he agreed to the proposed resolution of his grievance. See id. at 1-2.
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In his reply, plaintiff asserts that Schmid and Mantzouratos “made numerous
remarks” during the alleged assault “that his attack was payback due to his having filed
previous grievances.” Dkt. No. 26 at 2. He asserts that “defendants made clear
references to my previous filing of grievance against jail staff, as a reason for their
vicious attack against me.” Id. at 5. He contends that he was “in fear of further physical
assaults and relation from the defendants and their co-workers if I were to attempt to
use the DCCG Grievance process.” Id. at 6.
Yet, it is well settled that “a generalized fear of retaliation” is “insufficient as a
matter of law to support a finding that the grievance process was unavailable to
overcome her failure to exhaust administrative remedies under the PLRA.” Lucente v.
Cty. of Suffolk, 980 F.3d 284, 312 (2d. Cir. 2020); see also Robinson v. Harder, No.
9:21-CV-01322 (DNH/CFH), 2024 WL 1469076, at *9 (N.D.N.Y. Feb. 20, 2024), report
and recommendation adopted, No. 9:21-CV-1322, 2024 WL 1218983 (N.D.N.Y. Mar. 21,
2024), appeal dismissed, No. 24-1156, 2024 WL 4677424 (2d Cir. Aug. 28, 2024)
(quoting Medina v. Kaplan, No. 16-CV-7223 (KMK), 2018 WL 797330, at *5 (S.D.N.Y.
Feb. 8, 2018)). “Where an inmate plaintiff claimed that ‘no grievance was filed was due
to the fact that [he] felt that there would be retaliation against [him] if [he] did file such
documents,’ this Court concluded that the plaintiff ‘fail[ed] to allege how any individual
prevented him from filing a grievance’ and merely stated ‘a generalized fear of
retaliation’; therefore, the Court granted the defendants’ motion for summary judgment.”
Robinson, 2024 WL 1469076, at *9 (quoting Rodriguez v. Landry, No. 9:20-CV-556
(BKS/TWD), 2020 WL 6747806, at *5-6 (N.D.N.Y. Oct. 26, 2020), report and
recommendation adopted, 2020 WL 6743077 (N.D.N.Y. Nov. 17, 2020)); see also
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DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (“A court cannot credit a plaintiff’s
merely speculative or conclusory assertions.”). Plaintiff’s claims that defendants
“referenced” his filing of grievances during the alleged assault fail to create a question of
material fact as to availability of administrative remedies as they are nonspecific and do
not raise more than a “generalized fear of retaliation.” Dkt. No. 26; Cade v. Hart, No.
9:22-CV-00751 (ECC/PJE), 2025 WL 2324129, at *8 (N.D.N.Y. July 15, 2025), report
and recommendation adopted, No. 9:22-CV-751 (ECC/PJE), 2025 WL 2323489
(N.D.N.Y. Aug. 12, 2025) (denying summary judgment where the plaintiff’s allegation of
threats was devoid of any information as to who made the threat or how the threat
affected the plaintiff’s ability to file future grievances); see also generally Scott v.
Cambisi, No. 20-CV-6388 MWP, 2024 WL 867102, at *10 (W.D.N.Y. Feb. 29, 2024)
(quoting Lucente, 980 F.3d at 213) (“[t]he mere fact that a plaintiff [alleges to have been]
subjected to violence or hostile acts, without more, does not render administrative
remedies unavailable because ‘a generalized fear of retaliation . . . is insufficient as a
matter of law to support a finding that [a] grievance process [is] unavailable.’”).
Plaintiff does not allege what each defendant “remarks” were. See Dkt. No. 26 at
2. He does not assert which grievance(s) either defendant allegedly referenced. See
id. 	“Unsubstantiated concerns about retaliation also will not excuse exhaustion as ‘it is
well-established that [a] plaintiff’s mere allegation of a generalized fear of retaliation is
insufficient to excuse his failure to file a grievance concerning these matters.’” Anderson
v. Spizziota, No. 11-5663 (SJF) (SIL), 2016 WL 11480707, at *9 (E.D.N.Y. Feb. 12,
2016), report and recommendation adopted sub nom. Anderson v. Sposato, No. 11-CV-
5663 (SJF)(SIL), 2016 WL 1275044 (E.D.N.Y. Mar. 31, 2016) (additional internal citation
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and quotation marks omitted) (quoting Mateo v. Bristow, No. 12 Civ. 5052 (RJS/GWG),
2014 WL 4631569, at *9 (S.D.N.Y. Sept. 17, 2014)); cf. Decolines v. Hollenbeck, No. 20-
CV-1502, 2021 WL 4947118, at *3-4 (N.D.N.Y. Oct. 25, 2021) (denying summary
judgment where the plaintiff alleged that a corrections officer said, “you like writing
grievances” before assault and another said, “you should've kept your mouth shut n—r
you wouldn't be going [through] this” while the plaintiff was being assaulted); see Santos
v. Schroeder, No. 9:19-CV-1610 (LEK/TWD), 2021 WL 931959, at *8 (N.D.N.Y. Feb. 1,
2021), report and recommendation adopted, No. 9:19-CV-1610 (LEK/TWD), 2021 WL
930709 (N.D.N.Y. Mar. 11, 2021) (denying summary judgment on exhaustion grounds
where the plaintiff alleged that the defendant told him, if he “valued [his] life,” he would
not file a grievance).
Further, in response to defendants’ allegations in his opposition papers, Schmid
and Mantzouratos both affirmed that they were unaware of plaintiff’s grievance history
or his filing of any complaints. See Dkt. Nos. 29-9, 29-10. Plaintiff has presented no
facts in his amended complaint or opposition from which it could be plausibly inferred
that defendants were at all aware of his prior grievance activity. See Gilmore v.
Karandy, No. 20-cv-542, 2020 WL 4673896, at *4 (N.D.N.Y. Aug. 12, 2020). Moreover,
as defendants attest, plaintiff’s only two grievances were not about defendants nor were
they raised against any specific jail staff, rather, they were about the general conditions
of his confinement. Thus, his allegations that defendants physically assaulted him in
retaliation for filing grievances against jail staff are also not credible as he does raise an
inference that defendants be motivated to retaliate against him for filing grievances that
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did not name them and named no specific jail staff.8 See, e.g., O’Diah v. Mawhir, No.
08-CV-322 (TJM/CFH), 2012 WL 4482579, at *7 (N.D.N.Y. Sept. 5, 2012) (“O’Diah fails
to allege how grievances which he filed pertaining to his commissary account were
discovered, or served as a motivating factor, in allegedly preventing him from receiving
medical care.”), report and recommendation adopted by 2012 WL 4471183 (N.D.N.Y.
Sept. 26, 2012).
In sum, plaintiff has failed to exhaust his administrative remedies or demonstrate
that the remedies were unavailable to him such that the failure to exhaust should be
excused. Accordingly, as defendants have met their burden of establishing that no
genuine issue of material fact exists regarding plaintiff’s lack of exhaustion, and in
response plaintiff has failed to demonstrate that administrative remedies were
unavailable to him, it is recommended that defendants’ Motion for Summary Judgment
be granted. See, e.g., 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). Moreover, as the
time to exhaust his administrative remedies has expired – the underlying incident
allegedly occurred over two years ago – it is recommended that the dismissal be with
prejudice. See Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004).
VI. Conclusion
8 Recognizing that plaintiff’s Amended Complaint did not raise a retaliation claim, the undersigned
nonetheless notes that it is “difficult to establish” a defendants’ retaliation for complaints against another
officer. See, e.g., Hare v. Hayden, 09 Civ. 3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011)
(dismissing the plaintiff's retaliation claim against a correctional officer when the only basis for claim was
that the plaintiff filed a complaint against a different officer) (citing Wright v. Goord, 554 F.3d 255, 274 (2d
Cir. 2009)). Although the undersigned does not cite these cases for review of a retaliation claim, the
general idea applies here as well as, in addition to being entirely conclusory and vague, plaintiff alleges
that defendants threatened plaintiff due to grievances that were not filed against them.
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Wherefore, for the reasons set forth herein, it is hereby
RECOMMENDED, that defendants’ Motion for Summary Judgment, dkt. no. 19,
be GRANTED; and it is
ORDERED, that the Clerk serve this Report-Recommendation & Order on parties
in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within which to
file written objections to the foregoing report. Such objections shall be filed with the
Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN (14)
DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85,
89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir.
1989)); see also 28 U.S.C. § 636(b)(1); FED. R. CIV . P. 6(a), 72.9
Dated: February 10, 2026
Albany, New York
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 and Order was mailed to you to serve and file objections. See F ED. R.
C IV . P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal federal holiday,
then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal federal
holiday. See id. § 6(a)(1)(c).
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