Werner v. The City of New York

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BRADLEY A. WERNER, JR.,
Plaintiff,
v. 	9:25-CV-0296
(MAD/ML)
BENNIE THORPE, Superintendent,
Marcy Corr. Facility; C.O. FLINT, Marcy
Corr. Facility; and JOHN DOE, Corrections
Officer,
Defendants.
____________________________________________
APPEARANCES: 	OF COUNSEL:
BRADLEY A. WERNER, JR.
Pro Se Plaintiff
Otis Bantum Correctional Center
16-00 Hazen Street
East Elmhurst, New York 11370
LETITIA A. JAMES 	RACHAEL OUIMET, ESQ.
Attorney General for the State of New York 	Assistant Attorney General
Counsel for Defendants Thrope and Flint
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 Bradley A. Werner Jr.
(“Plaintiff”) against Bennie Thorpe (Superintendent),1 C.O. Flint, and John Doe (collectively
1 	The Clerk of the Court is directed to update the docket to reflect that the correct spelling
of Defendant Bernie Thorpe is actually “Bennie Thorpe.” (Dkt. No. 22 at 3 n.1.)
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“Defendants”), is a motion to dismiss and a motion for summary judgment filed by Defendants
Thorpe and Flint (collectively “Named Defendants”). (Dkt. No. 28.) For the reasons set forth
below, I recommend that Named Defendants’ motion for summary judgment be granted and the
Amended Complaint be dismissed in its entirety.
I. 	RELEVANT BACKGROUND
A. 	Plaintiff’s Claims
United States District Judge Mae A. D’Agostino thoroughly outlined the factual
allegations in Plaintiff’s Amended Complaint in her Decision and Order dated April 14, 2025.
(Dkt. No. 13 at 5-8.) At this procedural posture, Plaintiff asserts failure to protect claims against
Defendants pursuant to the Eight Amendment and 42 U.S.C. § 1983. (See generally Dkt. No. 12;
Dkt. No. 13.)
B. 	Parties’ Briefing on Named Defendants’ Motion for Summary Judgment and
Motion to Dismiss
1. 	Named Defendants’ Motion for Summary Judgment and Motion to
Dismiss
Generally, in support of their motion for summary judgment and motion to dismiss,
Named Defendants assert the following two arguments: (1) Plaintiff failed to exhaust his
available administrative remedies before commencing this action; and (2) Plaintiff’s Eighth
Amendment failure to protect claim against Named Defendants should be dismissed for failure to
state a claim upon which relief may be granted. (See generally Dkt. No. 28, Attach. 1.)
More specifically with respect to their first argument, Named Defendants assert that
Plaintiff did not file a grievance or appeal a denial of any grievance to the Central Office Review
Committee (“CORC”) regarding his Eighth Amendment failure to protect claims against Named
Defendants. (Dkt. No. 28, Attach. 1 at 9-10.) Named Defendants argue that even if Plaintiff had
filed a grievance on the date of the alleged incident (February 9, 2025), Plaintiff commenced this
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action only six days later, and the Inmate Grievance Review Committee (“IGRC”) would have
had sixteen days (until February 25, 2025) to respond to such a grievance. (Id. at 10.) Named
Defendants argue that because the time for Plaintiff to exhaust available administrative remedies
expired on March 2, 2025, his Eighth Amendment failure to protect claims should be dismissed
with prejudice. (Id. at 10-11.)
With respect to their second argument, Named Defendants argue that Plaintiff fails to
allege facts plausibly suggesting that (a) a substantial risk of harm existed, or (b) Named
Defendants were deliberately indifferent to Plaintiff’s safety. (Dkt. No. 28, Attach. 1 at 11-17.)
Named Defendants argue that because Plaintiff does not allege that he had any prior altercation
with the incarcerated individual who attacked him in his cube, he fails to allege that a substantial
risk of harm existed. (Id. at 12.) Moreover, Named Defendants argue that the Amended
Complaint fails to allege that a substantial risk of harm existed because it fails to specify any
specific risks to Plaintiff’s safety or that the incarcerated individual who attacked Plaintiff posed
a substantial threat to Plaintiff. 	(Id. at 12-13.) Named Defendants argue that the Amended
Complaint fails to allege that they were deliberately indifferent to Plaintiff’s safety because it
does not allege that (i) numerous other assaults occurred in the cubes of the H2 dorm, (ii) such
incidents posed a substantial risk of harm to incarcerated individuals housed there, (iii) Named
Defendants had knowledge of prior attacks, (iv) despite that knowledge, Named Defendants
failed to take reasonable steps to reduce the risk of harm, (v) the prior attacks in the bathroom
and the assault in Plaintiff’s cube were similar enough that remedial measures addressing the
former would have reduced the risk of the latter, and (vi) if Named Defendants had taken
remedial steps, Plaintiff would not have been attacked in his cube. (Id. at 13-17.)
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2. 	Plaintiff’s Response in Opposition
Generally, in opposition to Named Defendants’ motion Plaintiff asserts that it is the
custom, policy, and practice of staff at Marcy Correctional Facility (“Marcy C.F.”) to ignore
grievances placed in the grievance box at the law library and mess hall. (Dkt. No. 32 at 1.)
Plaintiff asserts that he personally witnessed a female correction officer tell incarcerated
individuals that the grievances “disappear” from the grievance box. (Id. at 2.) Plaintiff asserts
that the system is “broken” and seeks appointment of pro bono counsel “due to the fact that [his]
current circumstances make it near impossible to properly respond to court orders.” (Id.)
3. 	Named Defendants’ Reply
Generally, in further support of their motion, Named Defendants assert the following
three arguments: (1) Plaintiff failed to comply with Local Rule 56.1(b) and thus, the Court
should deem all factual allegations contained in their Statement of Material Facts as admitted; (2)
Plaintiff failed to exhaust his administrative remedies; and (3) Plaintiff constructively abandoned
his Eighth Amendment failure to protect claim against them. (Dkt. No. 33.)
More specifically, with respect to their second argument Named Defendants assert that
Plaintiff’s argument that the grievance process was unavailable to him is without merit. (Dkt.
No. 33 at 4-7.) Named Defendants argue that Plaintiff’s conclusory, general allegations of
mishandling grievances does not create a genuine issue of material fact and should be
disregarded. (Id.)
With respect to their third argument, Named Defendants argue that Plaintiff abandoned
his Eighth Amendment failure to protect claim because he did not oppose their argument that he
failed to state a claim upon which relief may be granted. (Dkt. No. 33 at 7-8.) Further, Named
Defendants argue that their underlying motion papers establish that Plaintiff failed to state a
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claim upon which relief may be granted with respect to his Eighth Amendment failure to protect
claim. (Id.)
C. 	Named Defendants’ Statement of Undisputed Material Facts
Unless otherwise noted, the following facts were asserted and supported by Named
Defendants in their Statement of Material Facts and not denied by Plaintiff in his response.
(Compare Dkt. No. 28, Attach. 3, with Dkt. No. 32.)
1. 	Plaintiff was housed at Marcy Correctional Facility (“Marcy C.F.”) during all
times relevant to this matter.
2. 	At all relevant times, incarcerated individuals at Marcy C.F. were provided with
full access to the New York State Department of Corrections and Community Supervision
(“DOCCS”) Incarcerated Grievance Program (“IGP”).
3. 	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).
4. 	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”).
5. 	For grievances alleging harassment (which includes harm allegedly sustained
from facility employee misconduct), the IGP follows a separate, expedited procedure.2
2 	Named Defendants cite to the declaration of Ms. Pfendler at paragraph 8 in support of
this fact asserted. (Dkt. No. 28, Attach. 3 [citing Dkt. No. 28, Attach. 4 at ¶ 8].) However,
support for this fact is located in Ms. Pfendler’s declaration at paragraph 10. (Dkt. No. 28,
Attach. 4 at ¶ 10.)
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6. 	For grievances alleging staff harassment and misconduct, upon receipt, the IGP
directly forwards the grievance to the Superintendent upon filing by the close of business day,
who has 25 calendar days to render a response.
7. 	If an incarcerated individual disagrees with the Superintendent’s response, they
must still appeal the decision to CORC to exhaust their administrative remedies.
8. 	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
denial, and the incarcerated individual can appeal to CORC to exhaust their administrative
remedies.
9. 	All grievances, whether they concern allegations of harassment or not, must be
filed within 21 days of the alleged incident.
10. 	Extensions of time to file a grievance may be granted, but only upon request in
writing within 45 days of the alleged incident.
11. 	CORC is the final appellate level of the IGP.
12. 	Plaintiff’s claim that Defendants Thorpe and Flint failed to protect him is the
proper subject for a grievance through DOCCS’ IGP.
13. 	Plaintiff had until March 2, 2025, to file a timely grievance with the IGRC at
Marcy C.F. related to his February 9, 2025, claims.
14. 	DOCCS records maintained at Marcy C.F.’s grievance office show that Plaintiff
did not file a grievance regarding his claim that Defendants Thorpe and Flint failed to protect
him on February 9, 2025.
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15. 	DOCCS records maintained at Marcy C.F.’s grievance office show that Plaintiff
did not request an extension of time to file a grievance regarding his claim that Defendants
Thorpe and Flint failed to protect him on February 9, 2025.
16. 	DOCCS records maintained at CORC reveal that Plaintiff did not appeal any
facility-level grievances concerning his claim that Defendants Thorpe and Flint failed to protect
him on February 9, 2025.
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).3 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
3 	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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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 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.4 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.5 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.6
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.);
4 	Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.)
(citing cases).
5 	Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases).
6 	Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases).
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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.
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
statement7–even when the non-movant was proceeding pro se.8
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).9 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
7 	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.
8 	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.”).
9 	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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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).
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, 578 U.S. 632, 136 S. Ct. 1850, 1854-55, 195 L.Ed.2d
117 (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, 122 S.Ct. 983, 152 L.Ed.2d 12 (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, 127 S.Ct. 910, 166 L.Ed.2d 798 (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, 127 S.Ct. 910 (citing Woodford v. Ngo, 548 U.S. 81,
88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d
Cir. 2011) (quoting Woodford, 548 U.S. at 90, 126 S.Ct. 2378) (exhaustion necessitates “‘using
all steps that the [government] agency holds out, and doing so properly’”). In New York State
prisons, DOCCS has a well-established three-step incarcerated grievance program (“IGP”), in
which, (1) the inmate must file a grievance with the IGRC within twenty-one days of the alleged
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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. 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).10 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).
10 	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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“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)
(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
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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
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, 127 S.Ct. 910. The plaintiff must then establish the IGP grievance procedure was
unavailable to him under Ross. Id.
III. 	ANALYSIS
After carefully considering the matter, I recommend that Named Defendants’ motion for
summary judgment be granted because Plaintiff failed to exhaust his available administrative
remedies before commencing this action.
A. 	Exhaustion of Administrative Remedies
Plaintiff appears to concede that he did not exhaust his administrative remedies. (See
generally Dkt. No. 32.)
Moreover, Named Defendants submitted proof in admissible form by way of an affidavit
from Erin Pfendler, the custodian for all grievance-related records at Marcy C.F. (Dkt. No. 28,
Attach. 4.) In her affidavit, Ms. Pfendler stated that she conducted a search of DOCCS records
for any grievances filed by Plaintiff related to his claims in this action. (Id. at ¶ 20.) Ms.
Pfendler affirmed that her search revealed that Plaintiff never filed any grievances with Marcy
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C.F.’s grievance office while housed at Marcy C.F. (Id.) Moreover, Ms. Pfendler affirmed that
Plaintiff did not file a grievance with respect to his claims against Named Defendants. (Id.)
In addition, Named Defendants submitted proof in admissible form by way of an affidavit
from Rachael Seguin, the custodian of records maintained by CORC. (Dkt. No. 28, Attach. 5.)
In her affidavit, Ms. Seguin stated that she conducted a diligent search of DOCCS records for
appeals received by CORC filed by Plaintiff, and her search revealed that Plaintiff failed to
appeal any grievances to CORC. (Id. at ¶¶ 12-14.).
As a result, I find that Plaintiff has not exhausted his administrative remedies.
B. 	Availability of Administrative Remedies
As set forth above, the Supreme Court of the United States 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
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.
Plaintiff asserts that it is “the practice, custom[,] and polic[y] of the staff at Marcy C.F. to
deny, with[h]old and or ignore grievances placed in the grievance box either at the law library or
at the mess hall.” (Dkt. No. 32 at 1);
To the extent that Plaintiff’s assertion is construed as arguing that the “dead end”
exception applies, I reject that argument. The Second Circuit held that “[t]he prison officials’
failure to respond to some of [the plaintiff’s] grievances did not render the IGRP administrative
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procedure unavailable.” Taylor v. N.Y.C. Dep’t of Corr., 849 F. App’x 5, 8 (2d Cir. 2021)
(summary order) (citing Williams v. Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016)). Given that
the “the IGRP contemplates that prison officials might not always respond to inmates’
grievances,” and, thus, sets forth “the procedure to follow in such circumstances,” the Second
Circuit held that, where the plaintiff knew of these required steps for exhaustion, but simply
“chose not to follow them,” his unilateral choice did not render the “exhaustion process . . .
unavailable for purposes of the PLRA.” Taylor, 849 F. App’x at 8. That same conclusion is
warranted here where Plaintiff attended and successfully completed the Marcy C.F. facility
orientation, which included a presentation on how to file and appeal grievance complaints but, in
this instance, chose not to follow those procedures. (Dkt. No. 28, Attach. 4 at ¶¶ 5-6); see
Graham v. Cochran, 96-CV-6166, 2002 WL 31132874, at *2 (S.D.N.Y. Sept. 25, 2002)
(“Plaintiff is not excused from the requirement that he exhaust administrative remedies simply
because he views the process as ineffective.”).
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).
As set forth above, upon arrival to Marcy C.F., Plaintiff attended “an orientation program
that includes a presentation on the grievance policies and procedures set forth in DOCCS
Directive 4040. Among the many topics covered in this presentation, incarcerated individuals
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are taught how to file and appeal grievance complaints.” (Dkt. No. 28, Attach. 4 at ¶ 5.) Ms.
Pfendler declared that from August 26, 2024, to September 1, 2024, Plaintiff attended and
successfully completed the facility orientation. (Dkt. No. 28, Attach. 4 at ¶ 6.) In addition, Ms.
Pfendler 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 Marcy C.F.’s law library. (Id.
at ¶ 4.)
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 v. West, 23-CV-0306, 2025 WL 1033787, at *9 (N.D.N.Y. Feb. 20, 2025)
(Evangelista, M.J.) (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 has not presented any argument that he was 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
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17
allegation ‘does not 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)).
Therefore, the undersigned concludes that Plaintiff failed to exhaust his available
administrative remedies before commencing this action. I recommend that Named Defendants’
motion for summary judgment be granted. See, e.g., Jenkins v. Short, 19-CV-1352, 2020 WL
9264842, at *7 (N.D.N.Y. Nov. 17, 2020) (Dancks, M.J.) (citing Berry v. Kerik, 366 F.3d 85, 87
(2d Cir. 2004)) (recommending granting the defendants’ motion for summary judgment, where
there was “no genuine issue of material fact that Plaintiff failed to exhaust his administrative
remedies,” and dismissal of the complaint with prejudice, explaining “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.”).
Finally, with respect to Plaintiff’s claims against Defendant John Doe, I recommend
dismissal of the claims against him because Plaintiff failed to exhaust his administrative
remedies. See Webb v. Fessette, 23-CV-1577, 2025 WL 1859012, at *4 n. 3 (N.D.N.Y. Jan. 22,
2025) (Dancks, M.J.) (recommending dismissal of the plaintiff’s claims against John Doe
defendants because, among other things, the plaintiff failed to exhaust his administrative
remedies), report and recommendation rejected on other grounds 2025 WL 2711067 (N.D.N.Y.
Sept. 23, 2025) (Coombe, J.).
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18
As a result, I recommend that the Amended Complaint be dismissed with prejudice.11
In light of this recommendation, to the extent that Plaintiff’s opposition is construed as a
motion for appointment of counsel, it is denied without prejudice.
ACCORDINGLY, it is
ORDERED that the Clerk of the Court shall update the docket to amend the spelling of
Defendant Bernie Thorpe to “Bennie Thorpe”; and it is further
ORDERED that Plaintiff’s motion for appointment of counsel (Dkt. No. 32) is DENIED
without prejudice; and it is further respectfully
RECOMMENDED that the Court GRANT Named Defendants’ motion for summary
judgment (Dkt. No. 28); and it is further respectfully
RECOMMENDED that Plaintiff’s Amended Complaint (Dkt. No. 12) be DISMISSED
in its entirety with prejudice; and it is further
ORDERED that the Clerk of the Court shall file a copy of this Report and
Recommendation on the docket of this case and serve a copy upon the parties in accordance with
the local rules.12
11 	To the extent that the assigned District Judge disagrees with this recommendation, the
undersigned requests that the motion be returned for consideration of Named Defendants’ motion
to dismiss for failure to state a claim upon which relief may be granted.
12 	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).
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19
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.13 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: April __, 2026
Binghamton, New York
13 	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).
22
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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.
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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).
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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.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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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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Gibbs v. Gadway, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
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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Gibbs v. Gadway, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
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.
Case 9:25-cv-00296-MAD-ML Document 34 Filed 04/22/26 Page 40 of 128

Graham v. Cochran, Not Reported in F.Supp.2d (2002)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2002 WL 31132874
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Patrick GRAHAM, Plaintiff,
v.
Peter COCHRAN, Correctional Sgt., et al., Defendants.
No. 96CIV6166LTSRLE.
|
Sept. 25, 2002.
Synopsis
Inmate brought § 1983 action against New York Department
of Correctional Services (DOCS) officials, alleging violations
of his First and Fourteenth Amendment rights arising from
the confiscation of literature from his cell. Official moved for
summary judgment. The District Court, Swain, J., adopted the
report and recommendation of Ronald L. Ellis, United States
Magistrate Judge, and held that: (1) inmate failed to exhaust
administrative remedies as required under Prison Litigation
Reform Act (PLRA); (2) inmate's complaint failed to assert
due process claim; (3) claim was a grievable offense; (4)
failure by inmate grievance resolution committee (IGRC) to
refer inmate's complaint letter to media review committee
(MRC) did not deprive inmate of constitutional rights; and (5)
failure to timely object to magistrate's report recommending
that certain officials should be granted qualified immunity
waived further judicial review of that decision.
Motion granted.
West Headnotes (6)
[1] Civil Rights Criminal law enforcement;
prisons
Even if inmate's letter to prison superintendent,
complaining of confiscation of literature from
inmate's cell, was a grievance, inmate failed
to exhaust administrative remedies for his §
1983 First and Fourteenth Amendment claims,
as required under Prison Litigation Reform Act
(PLRA); although inmate grievance resolution
committee (IGRC) failed to render decision,
inmate could have appealed to the next level
after time limit for IGRC action passed, and
inmate failed to make such an appeal. U.S.C.A.
Const.Amends. 1, 14; 42 U.S.C.A. §§ 1983,
1997e(a).
12 Cases that cite this headnote
[2] Civil Rights Prisons and jails; probation
and parole
Inmate's original complaint failed to assert claim
that New York Department of Correctional
Services (DOCS) officials violated inmate's
due process right to dispose of literature
confiscated from his cell, although inmate
asserted in complaint claim that literature
had been confiscated from his cell. U.S.C.A.
Const.Amend. 14.
[3] Civil Rights Criminal law enforcement;
prisons
Inmate's § 1983 claim that literature was
confiscated from his cell by New York
Department of Correctional Services (DOCS)
officials in violation of inmate's First and
Fourteenth Amendment rights was a grievable
offense, rather than an offense concerning prison
discipline, and thus inmate was required to
exhaust administrative remedies under Prison
Litigation Reform Act (PLRA). U.S.C.A.
Const.Amends. 1, 14; 42 U.S.C.A. §§ 1983,
1997e(a).
8 Cases that cite this headnote
[4] United States Magistrate Judges Report
and recommendation
It would be inappropriate for report and
recommendation of magistrate judge to instruct
inmate as to how to pursue administrative
claim that confiscation of literature from cell,
by New York Department of Correctional
Services (DOCS) officials violated his First
and Fourteenth Amendment rights. U.S.C.A.
Const.Amends. 1, 14.
[5] Constitutional Law Prisoners
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Graham v. Cochran, Not Reported in F.Supp.2d (2002)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
Constitutional Law Discipline and
classification
Prisons Grievances
Failure by inmate grievance resolution
committee (IGRC) to refer inmate's letter,
complaining of confiscation of literature from
inmate's cell by New York Department of
Correctional Services (DOCS) officials, to media
review committee (MRC) did not deprive inmate
of First and Fourteenth Amendment rights; letter
was not forwarded to MRC because DOCS
officials treated the letter as grievable. U.S.C.A.
Const.Amends. 1, 14.
5 Cases that cite this headnote
[6] United States Magistrate Judges Waiver
of right to review in general
Failure by inmate to file timely objections to
report of magistrate judge recommending that
certain New York Department of Correctional
Services (DOCS) officials should be granted
qualified immunity, on inmate's § 1983 claims
that officials confiscated literature from his cell,
waived further judicial review of the decision;
report contained a deadline for response. 42
U.S.C.A. § 1983.
2 Cases that cite this headnote
Attorneys and Law Firms
Patrick Graham, Cayuga State Prison, Moravia, for Plaintiff.
Barbara K. Hathaway, Assistant Attorney General, New
York, for Defendant.
MEMORANDUM OPINION AND ORDER
ADOPTING REPORT AND RECOMMENDATION
SWAIN, District J.
*1 Plaintiff Patrick Graham (“Plaintiff”) alleges that the
officials of the New York State Department of Correctional
Services (“DOCS”) violated his First and Fourteenth
Amendment rights when they confiscated “Five Percenter”
literature from his cell. Magistrate Judge Ellis has issued a
Report and Recommendation (“Report”), concluding that the
Court should grant the motion of Defendant Commissioner
Glenn S. Goord (“Defendant”) for summary judgment based
on Plaintiff's failure to exhaust administrative remedies.
Plaintiff interposed timely objections to the Report, arguing
principally that he had filed a complaint about the confiscation
on April 16, 1996, but that Defendant failed to render
a decision, thereby precluding him from filing an appeal.
Plaintiff also advances several other arguments, none of
which provides sufficient grounds to reject the Report. For the
following reasons, the Court will adopt the Report.
Upon review of a report and recommendation, the court
“may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.” 28
U.S.C.A. § 636(b)(1)(C) (West 1993). “To accept the report
and recommendation of a magistrate judge to which no
timely objection has been made, a district court need only
satisfy itself that there is no clear error on the record.”
Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985)
(citations omitted). See also Pizarro v. Bartlet, 776 F.Supp.
815, 817 (S.D.N.Y.1991) (court may accept report if it is
not “facially erroneous”). The court is required to make a
de novo determination as to the aspects of a report and
recommendation to which objections are filed. See id.; United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). When,
however, a party makes frivolous or conclusory objections,
or simply reiterates his original arguments, the district court
reviews a report and recommendation only for clear error. See
Camardo v. Gen. Motors Hourly–Rate Employees Pension
Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992) (court need
not consider objections that are frivolous, conclusory or
general and constitute a rehashing of the same arguments
and positions taken in original pleading). Objections to a
magistrate judge's report and recommendation “are to be
specific and are to address only those portions of the proposed
findings to which a party objects.” Camadaro, 806 F.Supp. at
381–82.
[1] The Report concludes that Plaintiff failed to exhaust
his administrative remedies and that his complaint should
therefore be dismissed. (Report at 9–10.) Plaintiff now
contends that he was unable to appeal to the Central Office
Review Committee (“CORC”) of the facility in which he was
incarcerated at the time of the events complained of, the final
step in the administrative process, because Defendant failed
“to properly log and provide any ‘decision or disposition.”
’ (Pl.'s Objections at 3.) The Court has reviewed this issue
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Graham v. Cochran, Not Reported in F.Supp.2d (2002)
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de novo. While the parties disagree as to whether Plaintiff's
April 16, 2002 letter to Superintendent Keane constitutes
a grievance, 1 the nature of the letter does not change the
Court's analysis. Even if Plaintiff's letter is considered a
grievance, Plaintiff's action must be dismissed because he
unreasonably failed to appeal. The Supreme Court recently
held that the requirement to exhaust administrative remedies
under the Prison Litigation Reform Act (“PLRA”) “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, 122 S.Ct. 983, 992, 152 L.Ed.2d 12
(2002). “[T]hose remedies need not meet federal standards,
nor must they be ‘plain, speedy, and effective.” ’ Id. at 998
(citing Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819,
149 L.Ed.2d 958 (2001)).
*2 Plaintiff argues that the failure of the Inmate Grievance
Resolution Committee (“IGRC”) to render a decision on
his April 16, 2002 letter precluded him from appealing to
the CORC. The record reveals, however, that inmates may
appeal to the next level matters that are not decided within
time limits 2 provided in the DOCS Directive for the Inmate
Grievance Program. (See Eagen Aff. Ex. A at 9, § VI(G).)
The IRGC's failure to respond thus neither prevented Plaintiff
from pursuing an appeal nor relieved him of the obligation
to do so. See Porter, 122 S.Ct. at 987 (inmate must exhaust
administrative remedies even if no relief is available through
the grievance process).
Plaintiff argues, alternatively, that filing a grievance would
have been futile because the administrative grievance process
is biased against him. Plaintiff has proffered no evidence to
support this conclusory allegation. Plaintiff is not excused
from the requirement that he exhaust administrative remedies
simply because he views the process as ineffective. See Booth,
121 S.Ct. at 1824–25 and n. 5.
[2] Plaintiff further objects to Judge Ellis's determination
that his arguments in opposition to Defendant's motion for
summary judgment raise a due process claim concerning
his right to dispose of the confiscated material that was not
raised in his original complaint. After reviewing the record,
the Court finds that original complaint does not raise a
claim concerning Plaintiff's right to dispose of the confiscated
material but concerns, rather, only the DOC's policy of
banning the confiscated material. (See Complaint, Ex. 1 to
Pl .'s Objections.) Plaintiff does not object to the Report's
determination that his due process claim, nonetheless, lacks
merit because Plaintiff did not avail himself of the adequate
compensatory remedy provided by the state. (Report at 9.)
Having reviewed de novo the Report's finding that Plaintiff
did not raise the due process claim in his Complaint, the
Court finds that there is no basis for rejecting Judge Ellis'
determination of this issue.
Plaintiff contends, in addition, that the Report erroneously
attributes the filing of a grievance in August 1996, as well as
other grievances relating to the Five Percenters, to him and
requests that the Court determine the identity of the actual
complainants. This information is irrelevant to the Court's
determination that Plaintiff failed to exhaust administrative
remedies in connection with matters underlying the instant
case; therefore, any error relating to the identity of
complainants in other matters provides no basis for rejection
of the Report's substantive conclusion.
[3] In his objections, Plaintiff reiterates his original
argument that his claim is non-grievable because it concerns
prison discipline. While the Court reviews de novo aspects
of the Report to which objections are filed, objections that
simply reiterate original arguments are reviewed for clear
error. See Camardo, 806 F.Supp. at 382. The Report directly
addresses Plaintiff's prison discipline argument and, whether
reviewed for clear error or de novo, Plaintiff's objection
does not provide any basis for deviation from Judge Ellis'
conclusion that Plaintiff's claim was grievable for the reasons
explained in the Report.
*3 [4] Plaintiff argues further that the Report fails to
instruct him as to how to pursue his claim in the administrative
process. It would be inappropriate for this Court to seek
to guide Plaintiff in this regard. See generally, Lewis v.
Casey, 518 U.S. 343, 361–62, 116 S.Ct. 2174, 135 L.Ed.2d
606 (1996) (courts should defer to prison officials' daily
administration of prison problems); Porter, 122 S.Ct. at
988 (correction officials should be given the opportunity to
address complaints internally). Plaintiff also requests that
the Court order Defendant to assign a log number to his
complaint. Again, it is not for the Court to instruct Defendant
in this manner. This administrative detail will be left to prison
officials.
[5] Plaintiff contends, additionally, that Defendant's failure
to refer his April 16, 2002 letter to the Media Review
Committee (“MRC”) deprived him of his First and Fourteenth
Amendment rights. The Report addresses this issue and
Plaintiff raises no argument in this regard that was not
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Graham v. Cochran, Not Reported in F.Supp.2d (2002)
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previously presented. As noted in the Report, Plaintiff's letter
was not forwarded to MRC because DOCS officials treated it
as grievable. (Report at 9.) The Court finds no clear error in
Judge Ellis' determination.
Plaintiff also argues that he should not be required to wait
for the administrative process to resolve his claim. The law is
clear, however, that administrative remedies do not have to be
“speedy and effective” to trigger the exhaustion requirement.
Booth, 532 U.S. at 732.
[6] Finally, Plaintiff has interposed a “Supplement to
my August 10, 2001 Objections” concerning the grant of
qualified immunity to former defendants Cochran, Keane,
and Jackson in the Court's September 12, 2000 Order adopting
Judge Ellis' June 28, 2000 report. Plaintiff's failure to file
a timely objection to the June 28, 2000 report constituted a
waiver of further judicial review of that decision. Plaintiff was
notified of the objection deadline: the June 28, 2000 report
warned that “[f]ailure to file timely objections constitute a
waiver of those objections in both the District Court and on
later appeal to the United States Court of Appeals.” (June 28,
2000 Report at 2.). See Small v. Sec'ty of Health and Human
Services, 892, F.2d 15, 16 (2d Cir.1989) (pro se Plaintiff's
failure to raise objections to magistrate report only constitutes
waiver when the magistrate report explicitly states that such
waiver will result in loss of appeal rights).
For the foregoing reasons, Judge Ellis' Report, which is set
forth in full below, is adopted in its entirety. Defendant's
Motion for Summary Judgment is granted and the case is
dismissed without prejudice.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that
any appeal from this order would not be taken in good faith.
See Coppedge v. United States, 369 U.S. 438, 444, 82 S.Ct.
917, 8 L.Ed.2d 21 (1962).
SO ORDERED.
REPORT AND RECOMMENDATION
I. INTRODUCTION
This matter was referred to the undersigned for resolution
of dispositive motions on May 12, 1999. Patrick Graham
(“Graham”), a New York State prisoner, alleges that officials
of the Department of Correctional Services (“DOCS”)
violated his First and Fourteenth Amendment rights when
they confiscated literature from his cell. All defendants
except Commissioner Goord have been dismissed by
prior orders. Defendant Goord now moves for summary
judgment, pursuant to Rule 56 of the Federal Rules of Civil
Procedure, on the grounds that Graham has failed to exhaust
administrative remedies. For the following reasons, this Court
recommends that the motion be GRANTED and Graham's
complaint be DISMISSED WITHOUT PREJUDICE.
II. BACKGROUND
A. Procedural Background
*4 Proceeding pro se, Graham filed this action on
August 15, 1996, pursuant to 42 U.S.C. § 1983, seeking
declaratory and injunctive relief and monetary damages.
He alleges that the confiscation of Five Percenter Nation
of Islam (“Five Percenter”) literature from his cell by
DOCS officials violated his rights under the First and
Fourteenth Amendments and under state law. On June 9,
1999, defendants moved for summary judgment pursuant
to Rule 56 of the Federal Rules of Civil Procedure. In
a Report and Recommendation dated February 14, 2000
(“2/14/2000 R & R”), this Court recommended that summary
judgment be granted on Graham's retaliation, state law, equal
protection, and monetary damages claims, but denied on his
First Amendment and Fourteenth Amendment due process
claims. The Court noted that defendants had failed to submit
the materials confiscated from Graham's cell to a Media
Review Committee, as mandated by previous rulings of the
prison authorities, and that there might be viable alternatives
to total ban on Five Percenter materials. 2/14/2000 R & R.
By order dated March 30, 2000, District Judge Jed S. Rakoff
adopted the Report and Recommendation. By subsequent
Report and Recommendation, dated June 29, 2000, this
Court recommended dismissal of the case against defendants
Cochran, Jackson and Keane, as they were no longer
proper parties for equitable relief. 1 Judge Rakoff adopted
that Report and Recommendation on September 14, 2000.
Graham's remaining claim seeks injunctive relief against
defendant Goord for violation of his First and Fourteenth
Amendment due process rights.
B. Factual Background
DOCS regulations establish a three-step inmate grievance
program. See Def. Mem. at 2–3. 2 First, a complaint must
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Graham v. Cochran, Not Reported in F.Supp.2d (2002)
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be filed with the inmate grievance resolution committee
(“IGRC”) within fourteen days of the events at issue. The
IGRC must investigate and resolve the complaint informally
or following a hearing to be held within seven days. A
grievant may appeal to the Superintendent of the facility
within four days of receipt of the committee's decision.
Finally, within four days of receiving the Superintendent's
response, an inmate may appeal to the Central Office Review
Committee (“CORC”), which, in turn, must render a decision
within twenty days. Id.
The Inmate Grievance Program Directive states that
“decisions or dispositions 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.” Reply Aff., Exh. A, III. E. 3
Specifically, the “individual decisions or disposition” of
Media Review and disciplainry proceedings are not grievable.
Id. Although the IGRC may accept complaints concerning
these issues as grievances, it must direct the grievant to the
appropriate mechanism if it decides to dismiss the matter as
non-grievable. Id.
As fully documented in this Court's previous Report &
Recommendation, Graham complained about his right to
possess and/or display materials on three separate occasions
in 1996. 2/14/2000 R & R at 2–8. The first complaint was
a grievance Graham filed after correctional officers told him
to remove the newspaper from his cell wall area on January
2, 1996. Graham filed a formal grievance with the IGRC,
requesting that DOCS officials “not make or enforce any
rules, regulations, policies or laws which infringes [sic] upon
prisoners' right to read, receive and possess five percenter
literature, publications, etc., in accordance with the law.”
Pl. Mem., Exh. 1: 1/16/96 Inmate Grievance Report. 4 In
response, Graham was informed that he could keep the
newspapers but not display them. The IGRC's ruling stated
that “insignia that endorses the Five Percent religion is not
approved and therefore cannot be openly displayed.” Pl.
Mem., Exh. 1: 1/30/96 IGRC Report. Graham appealed this
ruling to the Superintendent, who confirmed that Graham was
allowed to receive the publications but could not display Five
Percenter symbols. Pl. Mem., Exh. 1: 2/6/96 Superintendent
Report. Graham appealed the decision to the CORC, which
confirmed the prior decisions and stated that Graham was
allowed to receive publications in accordance with Directives
# 4572 and # 4911. Pl. Mem., Exh. 1: 4/3/96 CORC Report.
Directive # 4572 instructed each institution to establish a
Media Review Committee to determine what materials may
be denied to inmates. Pl. Mem., Exh. 1: Directive 4572.
*5 Graham's second complaint pertained to the confiscation
of his Five Percenter literature by correctional officers on
April 16, 1996. Following the confiscation, Graham received
a Tier II Misbehavior Report for being in possession of
unauthorized materials. Two days later, he was transferred
to the Elmira Correctional Facility. Graham was never
disciplined on these charges. However, he did complain
about the confiscation of his literature in a letter to the
Superintendent. 5 The letter was forwarded to the IGRC,
which issued a report stating that Graham may receive the
materials as long as he does not display them. Pl. Mem., Exh.
1: 10/31/96 IGRC Report. Consistent with policy directives
referenced in the CORC decision in Graham's first complaint,
the report stated that the confiscated materials would be
forwarded to a Media Review Committee to determine
whether the materials would be returned to Graham. Id .
Graham appealed this decision to the Superintendent, who
affirmed the IGRC's ruling. Graham did not appeal the
decision to the CORC. In August, 1996, Graham complained
a third time by filing a grievance requesting a definition of
acceptable literature. The IGRC reiterated its position that
Directive # 4572 was controlling, and the Superintendent
affirmed. See 2/14/2000 R & R at 7.
C. The Instant Motion
Defendant Goord now seeks summary judgment dismissing
this action on the ground that Graham failed to exhaust
his administrative remedies as mandated by 42 U.S.C. §
1997e(a). See Def. Mem. at 5 . 6 In response, Graham argues
that the confiscation incident was a disciplinary matter and
therefore “non-grievable” under the prison grievance policy.
Pl. Let. 11/6/2000. 7 In support of his argument, he attached
a copy of the misbehavior report he received for possession
of unauthorized material. Id. Exh. 1.
Goord counters that the misbehavior report Graham received
was not a “non-grievable” disciplinary matter. According
to the Directive on the Inmate Grievance Program, only
a “decision or disposition” of specified matters are non-
grievable. Rep. Mem. at 2 . 8 Here, Graham's misbehavior
report is not a “decision or disposition,” as it was never
acted upon by the facility. Goord also argues that even if
the misbehavior report itself were non-grievable, Graham
nevertheless could have grieved the policies, rules and
procedures of the DOCS programs at issue, namely the
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media and disciplinary proceedings. Rep. Mem. at 2. By
letter dated July 10, 2001, Goord submitted for consideration
recent decisions regarding the exhaustion requirement of
the Prison Litigation Reform Act of 1995 (“PLRA”).
Graham responded by letter dated July 16, 2001, that his
complaint was a grievance for exhaustion purposes and
the confiscation violated his due process rights. Pl. Let.
7/16/2001 . 9 Finally, on July 23, 2001, Goord submitted
a supplemental memorandum (“Supp.Mem.”) addressing
arguments proffered by Graham in his July 16, 2001 letter.
III. DISCUSSION
A. Summary Judgment Standard
*6 A court may grant summary judgment only if it
determines that there are no genuine issues of material fact
based on a review of the pleadings, depositions, answer to
interrogatories, admissions on file and affidavits. Fed.R.Civ.P.
56(c). The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact. See Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986). The court must construe the facts in the
light most favorable to the nonmoving party and must resolve
all ambiguities and draw all reasonable inferences against the
moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
B. Exhaustion Requirements
The Prison Litigation Reform Act of 1996 (“PLRA”), 10
which became effective in April 1996, directs inmates
complaining about “prison conditions” to avail themselves of
institutional grievance procedures before filing their claims in
federal court. The statute states in pertinent part:
“No action shall be brought with a 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). Courts have interpreted the
provision to require complete exhaustion in accordance
with institutional procedures. See, e.g., Sulton v. Greiner,
2000 WL 1809284 (S.D.N.Y. Dec.11, 2000) (granting
summary judgment where prisoner failed to appeal to
the CORC); Petit v. Bender, 2000 WL 303280, at *2–3
(S.D.N.Y. March 22, 2000) (prisoner who only partially
complied with the grievance procedures failed to exhaust
his administrative remedies.); Santiago v. Meinsen, 89
F.Supp.2d 435 (S.D.N.Y.2000) (prisoners must challenge
the conditions of their confinement through the highest
level of available administrative avenues prior to filing
suit). This requirement applies even when plaintiffs seek
a remedy that cannot be awarded by the administrative
body hearing the complaint. See Booth v. C.O. Churner, 532
U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (even
if prison grievance procedures do not allow for the relief
requested, a prisoner must still exhaust such procedures);
Sonds v.. St. Barnabas Hospital, 2001 WL 664402, *2
(S.D.N.Y. May 21, 2001); Calca v. Keefe, 2001 WL 256170
(D.Conn. March 8, 2001); Sulton, 2000 WL 1809284, *9;
Majid v. Wilhelm, 110 F.Supp.2d 251, 257 (S.D.N.Y.2000);
The exhaustion requirement in the PLRA does not define
“prison conditions.” The Second Circuit, holding that assault
and excessive force claims are not prison conditions subject
to the exhaustion requirement, noted that “ ‘prison conditions'
appear[s] to refer to circumstances affecting everyone in
the area affected by them, rather than single momentary
matters, such as beatings or assaults, that are directed at
particular individuals.” Nussle v. Willette, 224 F.3d 95, 101
(2d Cir.2000) cert. granted, 532 U.S. 1065, 121 S.Ct. 2213,
150 L.Ed.2d 207, 69 U.S.L.W. 3399 (U.S. June 4, 2001)
(No. 00–853). Even under this approach, First Amendment
claims, including those alleging wrongful confiscation of
literature, fall into the category of “prison conditions,” and
courts in this Circuit have treated such claims as challenges
to prison conditions subject to the exhaustion requirement.
See, e.g., Majid v. Wilhelm, 110 F.Supp.2d 251 (summary
judgment granted in part because plaintiff had failed to
exhaust his administrative remedies regarding his freedom
of speech claim); Calca v. Keefe, 2001 WL 256170, *1, *9
(D.Conn.2001) (plaintiff's first amendment claim was subject
to the PLRA's exhaustion requirement).
C. Graham Failed to Exhaust the Second Complaint
*7 Graham advances the following arguments in opposition
to the instant motion: (1) his complaint qualifies as a
grievance and was treated by DOCS officials as a grievance,
Pl. Let. 7/16/2001; (2) the complaint raises non-grievable
disciplinary issues, precluding him from properly exhausting
his administrative remedies, Pl. Let. 11/6/2000; and (3) he was
deprived of his right to dispose of the confiscated material.
Id. Of these, only the first two arguments are relevant here.
As Goord points out, Graham's opposition papers present a
new due process claim that he did not raise in his complaint.
Supp. Mem. at 4. In any event, the claim is meritless because
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Graham had an adequate post-deprivation remedy. See Love
v.. Coughlin, 714 F.2d 207, 209 (2d Cir.1983).
The Court agrees that, based on the record, Graham's
complaint was treated as a grievance. The record shows
that Graham addressed his second complaint concerning the
confiscation of his Five Percenter literature on April 16, 1996,
to Superintendent Keane, whose office received it some time
in April. See 2/14/2000 R & R at 5, n.10. Although grievance
proceedings are normally commenced by sending a grievance
form to the IGRC rather than a letter to the Superintendent,
Supp. Mem. at 2, it appears that the IGRC did treat Graham's
letter as a grievance in this case. Following an investigation
by the Superintendent's office, the IGRC held a hearing on
October 31, 1996, and issued a report. 2/14/2000 R & R
at 6. Graham then appealed the committee's ruling to the
Superintendent, who affirmed the ruling. Id. Graham did not
appeal this decision to the CORC. Id.
However, the Court is not persuaded by Graham's second
argument—that the confiscation was “non-grievable.” As
noted, Graham succeeded in initiating a grievance proceeding
with his April 1996 letter to the Superintendent. He
also successfully appealed the IGRC's decision to the
Superintendent. Thus, the confiscation was indeed grievable.
Moreover, the IGRC never directed Graham to address the
letter elsewhere, as it is required to do when it receives
complaints addressing non-grievable issues. See Rep. Aff.,
Exh. A, III. E. Graham cannot now characterize the incident
as non-grievable in order to absolve himself of the statutory
obligation to exhaust administrative remedies. Having fully
appealed a grievance once before, Graham was familiar with
the prison grievance process. Nothing in the record suggests
that he was not capable of exhausting his administrative
remedies by appealing to the CORC. 11 In sum, none
of Graham's arguments overcomes his failure to exhaust
administrative remedies.
V. CONCLUSION
For the foregoing reasons, I respectfully recommend that
defendant's motion for summary judgment be GRANTED
and plaintiff's complaint be DISMISSED WITHOUT
PREJUDICE.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the
parties shall have ten (10) days after being served with a copy
of the recommended disposition to file written objections to
this Report and Recommendation. Such objections shall be
filed with the Clerk of the Court and served on all adversaries,
with extra copies delivered to the chambers of the Honorable
Laura Taylor Swain, 40 Center Street, Room 426, and to
the chambers of the undersigned, Room 1970. Failure to file
timely objections shall constitute a waiver of those objections
both in the District Court and on later appeal to the United
States Court of Appeals. Thomas v. Arn, 474 U.S. 140, 150,
106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Small v. Secretary of
Health and Human Services, 892 F.2d 15, 16 (2d Cir.1989)
(per curiam ); 28 U.S.C. § 636(b)(1) (West Supp.1995);
Fed.R.Civ.P. 72, 6(a), 6(e).
All Citations
Not Reported in F.Supp.2d, 2002 WL 31132874
Footnotes
1 Judge Ellis determined that Plaintiff's letter was treated by DOCS officials as a grievance. (Report at 9.) Judge
Ellis based this finding, in part, on the erroneous conclusion that a hearing was held on October 31, 1996,
concerning Plaintiff's letter. (Id.) Defendant and Plaintiff agree that the October 31, 1996 hearing concerned
another inmate's grievance. (Def.'s Reply at 4; Pl.'s Objections at 10.)
2 IGRC representatives have up to seven working days to review a grievance and resolve it informally.
(See Eagen Aff. Ex. A at 4.) If there is no such resolution, the IGRC hears the complaint and may make
recommendations. (Id. at 5.) A hearing, if necessary, takes place within seven working days after the IGRC
receives the grievance. The IRGC must provide a decision and its reasons to the grievant within two working
days. (Id.)
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1 The Report and Recommendation noted that Cochran and Keane are currently employed at other correctional
facilities and Jackson is no longer employed by DOCS.
2 “Def. Mem.” refers to defendant's memorandum of law in support of motion for summary judgment.
3 “Rep. Aff.” refers to the December 7, 2000 affidavit of Thomas Eagen, Director of the Inmate Grievance
Program at the New York State Department of Correctional Services, submitted in reply to Graham's
memorandum. Exhibit A attached to the affidavit is a copy of Directive # 4040, which describes the grievance
program. The Directive states that “decisions or dispositions 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.” Rep. Aff. Exh. A., III.E. Examples include Media Review and disciplinary proceedings.
4 “Pl. Mem.” refers to Graham's memorandum of law, dated August 23, 1999, in response to defendant's
first motion for summary judgment. Plaintiff's attachments are all included in Exhibit 1; a short description
designates the document cited.
5 The parties disagree as to whether this letter complaint qualifies as a “grievance” for exhaustion purposes.
6 This ground was not raised in the prior motion for summary judgment.
7 “Pl. Let. 11/6/2000” refers to plaintiff's letter memorandum dated November 6, 2000.
8 “Rep. Mem.” refers to Goord's December 7, 2000 reply memorandum in support of his motion for summary
judgment.
9 “Pl. Let. 7/16/2001” refers to Graham's letter to the Court, dated July 16, 2001, and attached exhibits.
10 Pub.L. No. 104–134, 110 Stat. 1321–66 (1996) (codified at 42 U .S.C. § 1997e(a) (Supp.2000))
11 Graham's transfer to the Elmira facility did not prevent him from appealing the IGRC's decision to the
Superintendent. It would not, therefore, have interfered with his ability to appeal to the CORC.
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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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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.
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Jackson v. West, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
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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Jenkins v. Short, Not Reported in Fed. Supp. (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2020 WL 9264842
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Darell JENKINS, Plaintiff,
v.
Sergeant SHORT, et al., Defendants.
9:19-cv-01352 (GTS/TWD)
|
Signed 11/16/2020
|
Filed 11/17/2020
Attorneys and Law Firms
DARELL JENKINS, Plaintiff, pro se, 18-A-0025, Southport
Correctional Facility, PO Box 2000, Pine City, NY 14871.
OF COUNSEL: LAUREN ROSE EVERSLY, ESQ.,
Assistant Attorney General, HON. LETITIA JAMES,
Attorney General for the State of New York, Attorney for
Defendants, The Capitol, Albany, NY 12224.
ORDER AND REPORT-RECOMMENDATION
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
I. INTRODUCTION
*1 This matter was referred for a Report and
Recommendation by the Honorable Glenn T. Suddaby, Chief
U.S. District Judge, pursuant to 28 U.S.C. § 636(b) and
Local Rule 72.3(c). Plaintiff Darell Jenkins, an inmate in the
custody of the New York State Department of Corrections
and Community Supervision (“DOCCS”), commenced this
pro se civil action under 42 U.S.C. § 1983, asserting claims
arising out of his incarceration at Mid-State Correctional
Facility (“Mid-State”). (Dkt. No. 1.) The suit was originally
filed in the United States District Court for the Western
District of New York (“W.D.N.Y.”), but was later transferred
to this District. (Dkt. No. 6.) The District Court reviewed
the complaint in accordance with 28 U.S.C. § 1915,
and found only Plaintiff's First Amendment free exercise
claims against Defendants Correctional Officer (“C.O.”)
Lindermayer, Sergeant (“Sgt.”) Short, and C.O. O'Neil
survived initial review and required a response. (Dkt. No. 10.)
Defendants now move for summary judgment, in lieu of
an answer, pursuant to Rule 56 of the Federal Rules
of Civil Procedure arguing Plaintiff failed to exhaust his
administrative remedies prior to commencing this action.
(Dkt. No. 21.) Plaintiff has not responded to Defendants’
motion and the time to do so has expired. (See Dkt. Nos.
25, 26, 27, 28.) For the reasons set forth below, the Court
recommends that Defendants’ motion be granted.
II. BACKGROUND
Plaintiff alleges that on September 1, 2019, at approximately
9:30AM, while Defendants were inside his cell, C.O.
Lindermayer “kneeled down on the floor above [Plaintiff's]
altar of Santeria, & threw [his] offerings & water away[.]
(Dkt. No. 1 at 5. 1 ) C.O. O'Neil then described Plaintiff's
religion as “voodoo.” Id. C.O. Lindermayer, Sgt. Short, and
C.O. O'Neil told Plaintiff he was not permitted to offer
“any food to [his] saints on [his] altar” and that he was not
permitted to have frankincense oils. Id.
Plaintiff filed a grievance but the grievance officer “Tapia” 2
“never answered [him]” and he “couldn't do anything because
the grievance officer [did] not respond[.]” Id. Attached to
Plaintiff's complaint is a letter dated September 27, 2019,
from C. Tapia, IGP, acknowledging receipt of five pages
of correspondence, assigned Grievance No. MS-24259-19.
Id. at 8. The letter indicates Grievance No. MS-24259-19
was “forwarded to the Superintendent in accordance with
Directive #4040” and that Plaintiff would be “notified of the
results.” Id. The letter stated to “Please refer to this grievance
# with any future inquires.” Id.
*2 Plaintiff's complaint is dated September 27, 2019. Id.
at 7. It was notarized on October 3, 2019, and was stamped
received by the Clerk for the W.D.N.Y. on October 11, 2019.
Id. The matter was subsequently transferred to this District by
Order of U.S. District Judge Elizabeth A. Wolford, issued on
October 15, 2019. (Dkt. No. 5.) Upon receipt of the action,
this Court issued a Decision and Order denying Plaintiff's
in forma pauperis (“IFP”) application as incomplete. (Dkt.
No. 7.) Plaintiff filed a second IFP application and pursuant
to the District Court's March 30, 2020, Decision and Order,
Plaintiff's First Amendment free exercise claims against
Defendants C.O. Lindermayer, Sgt. Short, and C.O. O'Neil
survived initial review, and summonses were issued as to
them. (Dkt. Nos. 8, 10, 11.)
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Defendants have not answered the complaint and instead
move for summary judgment based solely on exhaustion
grounds. (Dkt. No. 21-1.) To that end, Defendants have
submitted sworn declarations from Rachel Seguin, the
Assistant Director of the IGP for DOCCS, and Christopher
Tapia, Supervisor of the IGP at Mid-State, describing
DOCCS’ administrative exhaustion process. (Dkt. Nos. 29-2,
29-3.) Defendants offer evidence that on or about September
4, 2019, Plaintiff filed a series of letters that were consolidated
into Grievance No. MS-24269-19, which alleged that on
September 1, 2019, during a cell integrity check, C.O.
Lindermayer threw out the sacrifices at his altar. (Dkt.
No. 21-2 at ¶ 6.) The letters also alleged that, at some
point between September 1, 2019 and September 3, 2019,
C.O. O'Neil referred to Plaintiff's religion as “voodoo,” and
that Sgt. Short also interfered with his religious practice.
Id. The first page of Grievance No. MS-24269-19, was
stamped received by the “IGP Office” on September 4,
2019. (See Dkt. No. 21-3 at 8.) Due to the nature of the
allegations, Grievance No. MS-24269-19 was forwarded to
the Superintendent. (Dkt. No. 21-2 at ¶ 7.) On or about
April 30, 2020, the Superintendent issued a determination
denying Grievance No. MS-24269-19. Id. There is no record
of Plaintiff appealing Grievance No. MS-24269-19 to the
Central Office Review Committee (“CORC”). Id. at ¶¶ 9,
13. Thus, Defendants argue summary judgment is appropriate
in this case because Plaintiff failed to fully exhaust his
administrative remedies prior to the commencement of this
action. (Dkt. No. 21-1.) As noted above, Plaintiff has failed
to submit any opposition to Defendants’ motion.
III. DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
A. Standard of Review
A court shall grant summary judgment only if the submissions
of the parties 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.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Fed. R.
Civ. P. 56(a). The moving party bears the initial burden of
demonstrating “the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 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.
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. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
A verified complaint, as Plaintiff has filed in this case, is to
be treated as an affidavit. Colon v. Coughlin, 58 F.3d 865, 872
(2d Cir. 1995) (“A verified complaint is to be treated as an
affidavit ... and therefore will be considered in determining
whether material issues of fact exist[.]”) (citations omitted).
*3 Where a party is proceeding pro se, the court must “read
[the pro se party's] 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). However,
“a pro se party's ‘bald assertion,’ unsupported by evidence, is
not sufficient to overcome a motion for summary judgment.”
Cole v. Artuz, No. 93 Civ. 5981 (WHP)(JCF), 1999 WL
983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)).
As noted, Plaintiff did not respond to Defendants’ motion for
summary judgment. Defendants’ motion advised Plaintiff of
the consequences of failing to respond to the motion. (Dkt.
No. 21 at 3.) The Clerk of the Court provided Plaintiff a
similar notice. (Dkt. No. 24.) When Plaintiff failed to timely
respond to the motion, the Court sua sponte granted Plaintiff
additional time in which to do so, again advising Plaintiff of
the consequences of failing to respond. (See Dkt. Nos. 25, 26,
27, 28.)
“The fact that there has been no response to a summary
judgment motion does not, of course, mean that the motion is
to be granted automatically.” Champion v. Artuz, 76 F.3d 483,
486 (2d Cir. 1996). However, when a motion for summary
judgment is unopposed, the court may “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)(3); see also N.D.N.Y. L.R.
7.1(b)(3) (“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 ...
shall be deemed as consent to the granting or denial of the
motion.”). Moreover, all properly supported facts set forth in
Defendants’ Statement of Material Facts that have not been
specifically controverted shall be deemed admitted. N.D.N.Y.
L.R. 7.1(a)(3).
B. Exhaustion of Administrative Remedies
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The Prison Litigation Reform Act of 1995 (“PLRA”),
provides, in pertinent part, “[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). Exhaustion is required
for “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). “[E]xhaustion is mandatory
under the PLRA and ... unexhausted claims cannot be brought
in court.” Jones v. Bock, 549 U.S. 199, 211 (2007); see also
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).
To properly exhaust administrative remedies under the PLRA,
inmates are required to complete the administrative review
process in accordance with the rules applicable to the
institution to which they are confined. 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”).
*4 In New York State prisons, DOCCS has a well-
established three-step administrative review process. See 7
N.Y.C.R.R. § 701.5. First, an inmate must file a complaint
with the facility's IGP clerk within twenty-one calendar days
of the alleged occurrence. Id. § 701.5(a). A representative
of the facility's inmate grievance resolution committee
(“IGRC”) has sixteen calendar days from receipt of the
grievance to informally resolve the issue. Id. § 701.5(b)(1).
If there is no such informal resolution, then the full IGRC
conducts a hearing within sixteen calendar days of receipt of
the grievance, id. § 701.5(b)(2), and issues a written decision
within two working days of the conclusion of the hearing. Id.
§ 701.5(b)(3).
Second, a grievant may appeal the IGRC decision to the
facility's Superintendent within seven calendar days of receipt
of the IGRC's written decision. Id. § 701.5(c)(1). If the
grievance involves an institutional issue (as opposed to a
DOCCS-wide policy issue), the Superintendent must issue a
written decision within twenty calendar days of receipt of the
grievant's appeal. Id. § 701.5(c)(3)(ii).
Third, a grievant may appeal to CORC within seven working
days of receipt of the Superintendent's written decision. Id. §
701.5(d)(1)(i). CORC is to render a written decision within
thirty calendar days of receipt of the appeal. Id. § 701.5(d)(3)
(ii).
Where the grievance involves allegations of employee
misconduct, as alleged here, there is an expedited
administrative process. See id. § 701.8. Complaints of
harassment, once given a number and recorded by the IGP
clerk, are forwarded directly to the Superintendent of the
facility. Id. In such cases the Superintendent is required to
order an investigation and render a decision within twenty-
five calendar days. Id. § 701(a)-(f). If the Superintendent
fails to respond within the required twenty-five day time
limit, the inmate may appeal his grievance to CORC. Id. §
701.8(g). Disagreement with the Superintendent's decision in
the expedited review process also requires an appeal to the
CORC. See id. § 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). Thereafter, CORC must
render a written decision within thirty days of receipt of the
appeal. Id. § 701.8(i). The Second Circuit has long recognized
this procedure as an “available remedy” for purposes of the
PLRA. See Hall v. Cty. of Saratoga, No. 10-CV-1120 (NAM/
CFH), 2013 WL 838284, at *1-2 (N.D.N.Y. Mar. 6, 2013).
At each step of the IGP, a decision must be rendered
within a specified time period. “Where the IGRC and/or
Superintendent do not timely respond, an inmate must appeal
to ‘the next step,’ ” assuming there is a “next step” in the
grievance process. Eleby v. Smith, No. 9:15-CV-0281(TJM/
DEP), 2017 WL 986123, at *4 (N.D.N.Y. Jan. 9, 2017)
(quoting 7 N.Y.C.R.R. § 701.6(g)(2)).
Generally, if a plaintiff fails to follow each of the required
steps prior to commencing litigation, he has failed to exhaust
his administrative remedies as required under the PLRA.
See Ruggiero v. Cty. of Orange, 467 F.3d 170, 176 (2d
Cir. 2006) (“[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).” (quotation marks and citations omitted)).
Nevertheless, 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 only those
administrative remedies that “are available” must first be
exhausted. 42 U.S.C. § 1997e(a); Ross, 136 S. Ct. at 1858
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(“[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 “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, 136 S. Ct. at 1859 (quotation marks and citations
omitted).
*5 The Ross Court identified three circumstances in which
a court may find 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.
Because failure to exhaust is an affirmative defense, the
defendants bears the burden of showing that an inmate has
failed to satisfy the exhaustion requirements. See Jones, 549
U.S. at 216; Williams v. Priatno, 829 F.3d 118, 122 (2d Cir.
2016). Whether the plaintiff has exhausted his administrative
remedies is a question of law. See Snider v. Melindez, 199
F.3d 108, 113-14 (2d Cir. 1999). Thus, an inmate's failure to
exhaust administrative remedies is properly considered on a
motion for summary judgment in lieu of an answer. Crichlow
v. Fischer, No. 6:15-CV-06252 EAW, 2017 WL 920753, at
*5 (W.D.N.Y. Mar. 7, 2017) (citing Crenshaw v. Syed, 686 F.
Supp. 2d 234, 236 (W.D.N.Y. 2010) (granting a motion for
summary judgment made in lieu of an answer where inmate
failed to exhaust administrative remedies)).
Here, it is undisputed Plaintiff failed to avail himself of the
full panoply of administrative remedies prior to commencing
this action. (Dkt. No. 21-2.) The record before the Court
demonstrates Plaintiff completed only the first step of the
grievance process before commencing this lawsuit. Id. As
stated above, Plaintiff filed a series of letters that were
consolidated into Grievance No. MS-24269-19. Id. at ¶ 7. Due
to the nature of the allegations, Grievance No. MS-24269-19
was forwarded to the Superintendent for investigation in
accordance with DOCCS policy on or about September 4,
2019. Id. at ¶ 8. On April 30, 2020, the Superintendent issued
a determination denying Grievance No. MS-24269-19. Id. at
¶ 9. However, Plaintiff did not appeal the Superintendent's
denial of Grievance No. MS-24269-19 to CORC. Id. at ¶ 10.
For these reasons, the Court finds Plaintiff failed to exhaust
his administrative remedies. See Bennett v. Fletcher, No.
9:17-CV-849 (GTS/CFH), 2020 WL 872491, at *7 (N.D.N.Y.
Jan. 16, 2020) (citing Omaro v. Annucci, 68 F. Supp. 3d
359, 364 (W.D.N.Y. 2014) (“It is well-established that an
inmate who does not appeal to CORC has failed to exhaust his
administrative remedies.”)), report-recommendation adopted
by 2020 WL 871156 (N.D.N.Y. Feb. 21, 2020); see, e.g.,
Hamm v. Farney, No. 9:13-CV-1302 (BKS/CFH), 2017
WL 8894723, at *5 (N.D.N.Y. Dec. 22, 2017), report and
recommendation adopted by 2018 WL 922149 (N.D.N.Y.
Feb. 16, 2018) (dismissing the plaintiff's complaint for failure
to exhaust where the IGP supervisor and DOCCS Assistant
Director of IGP both declared that “a search of the DOCCS
database confirmed plaintiff's original grievance, as well as
an appeal to the Superintendent, but produced no record of
an appeal to CORC”); see also Teaque v. Mullen, No. 9:18-
CV-01412 (GTS/CFH), 2019 WL 8589277, at *7 (N.D.N.Y.
Dec. 17, 2019) (“Because plaintiff commenced this action
before receiving a response from the Superintendent of
Mid-State regarding his grievance, plaintiff did not fully
exhaust his administrative remedies before commencing this
action.”), report and recommendation adopted by 2020 WL
858355 (N.D.N.Y. Feb. 21, 2020).
*6 “[O]nce a defendant has adduced reliable evidence that
administrative remedies were available to the plaintiff and
that the plaintiff nevertheless failed to exhaust those remedies,
the plaintiff must then ‘counter’ the defendant's assertion by
showing exhaustion [or] unavailability” under Ross. Ferrer v.
Racette, No. 14-cv-1370 (GTS/DJS), 2017 WL 6459525, at
*12 (N.D.N.Y. Dec. 18, 2017) (citation omitted); see Perez v.
Colon, No. 9:19-CV-722 (GTS/DJS), 2020 WL 4549206, at
*4 (N.D.N.Y. June 16, 2020) (“finding no basis appeared on
the record for concluding that DOCCS’ grievance procedure
was unavailable to the plaintiff given he failed to respond
to the defendants’ motion”), report and recommendation
adopted by 2020 WL 4530602 (N.D.N.Y. Aug. 6, 2020).
Although he did not respond to Defendants’ motion,
Plaintiff's verified complaint suggests administrative
remedies were unavailable to him at the time he commenced
this action because the “grievance officer [did] not
respond[.]” (Dkt. No. 1 at 7.) Defendants recognize the
Superintendent's decision was issued beyond the 25 calendar
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days set forth in 7 N.Y.C.R.R. § 701.8(f). (Dkt. No. 21-1 at
7-8.) 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 a lack of response
at any level of review. See Smith v. Kelly, 985 F. Supp. 2d
275, 281 (N.D.N.Y. 2013) (Suddaby, C.J.) (“[Any failure
by the IGRC or the Superintendent to timely respond to a
grievance ... can—and must—be appealed to the next level ...
to complete the grievance process.”).
Here, when the Superintendent did not render a decision
on Plaintiff's grievance within 25 days (i.e., by September
29, 2019), Plaintiff had the ability to file an appeal with
CORC. See 7 N.Y.C.R.R. § 701.8(g). “[I]nstead of doing
so, [Plaintiff] rushed to Court, without attempting to appeal
(the Superintendent's non-response) to [CORC] eviscerating
the purpose of the administrative remedy process.” Teaque
v. Mullen, 2020 WL 858355, at *4 (citing Woodford, 548
U.S. at 89 (articulating two main purposes of exhaustion of
administrative remedies)). Thus, because Plaintiff failed to
appeal the Superintendent's non-response to the next level, he
cannot be excused from the grievance process. See Heyliger
v. Gebler, 624 F. App'x 780, 782 (2d Cir. 2015) (summary
order) (“Under the regulations ..., if at any step of the
grievance process, an inmate did not receive a response within
the specified timeframe, he was nonetheless permitted to
‘appeal[ ] to the next step.’ ”) (quoting N.Y. Comp. Codes R.
& Regs. tit. 7, § 701.6(g)(2) (2015)).
Based on the foregoing, the Court agrees with Defendants
that Plaintiff failed to avail himself of the full panoply of
administrative remedies prior to commencing this action.
See James v. Doty, No. 9:17-CV-1145 (MAD/CFH), 2019
WL 1474309, at *5 (N.D.N.Y. Jan. 4, 2019) (“Plaintiff
does not suggest, and the record does not demonstrate, that
plaintiff appealed the non-response to CORC.”), report and
recommendation adopted by 2019 WL 457694 (N.D.N.Y.
Feb. 6, 2019).
Moreover, there is no evidence in the record showing the
grievance procedure “operate[d] as a simple dead end” to
Plaintiff, nor is there any evidence to establish an issue of
fact as to unavailability due to an “opaque” administrate
scheme. See Ross, 136 S. Ct. at 1859-60. As pointed out
by Defendants, Plaintiff filed and appealed the denial of
an unrelated grievance (Grievance No. MS-24271-19) to
CORC on or about November 7, 2019. (Dkt. No. 21-2 at ¶
10.) See also Gonzalez v. Coburn, No. 6:16-cv-6174, 2017
WL 6512859, at *6 (W.D.N.Y. Dec. 20, 2017) (finding the
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
he could not avail himself of it). Lastly, the record does
not demonstrate prison administrators prevented Plaintiff
from using the grievance procedure due to “machination,
misrepresentation, or intimidation.” See Ross, 136 S. Ct. at
1859-60. Thus, given the record and considering the evidence
in the light most favorable to Plaintiff, the Court finds there is
no genuine dispute of fact that administrative remedies were
available.
*7 In light of the foregoing, the Court recommends granting
Defendants’ motion for summary judgment, as there is no
genuine issue of material fact that Plaintiff failed to exhaust
his administrative remedies. Generally, a dismissal for failure
to exhaust administrative remedies is without prejudice, so
that the inmate-plaintiff can cure the defect by exhausting his
administrative remedies and then reinstituting his suit. See
Snider v. Melindez, 199 F. 3d 108, 111-12 (2d Cir. 1999).
However, 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, more than six months have passed since Plaintiff
should have appealed Grievance No. MS-24269-19 to CORC.
(See Dkt. No. 21-2 at ¶¶ 8, 9, 13.) As Plaintiff's failure
to exhaust his administrative remedies is incurable at this
point, the Court recommends dismissing Plaintiff's complaint
with prejudice. See Castineiras v. Helms, No. 9:17-CV-1084
(BKS/ATB), 2019 WL 2870300, at *5-6 (N.D.N.Y. June 6,
2019).
IV. CONCLUSION
After carefully considering the record, the Court finds
Plaintiff failed to exhaust his administrative remedies.
ACCORDINGLY, it is hereby
RECOMMENDED that Defendants’ motion for summary
judgment (Dkt. No. 21) be GRANTED; and it is further
RECOMMENDED that Plaintiff's complaint (Dkt. No. 1) be
DISMISSED WITH PREJUDICE; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of
this Order and Report-Recommendation, along with copies
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of the unpublished decisions cited herein in accordance with
Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have
fourteen days within which to file written objections to
the foregoing report. 3 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 (2d Cir. 1993) (citing Small v. Sec'y of Health and
Human Servs., 892 F.2d 15 (2d Cir. 1989) (per curiam)); 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a).
All Citations
Not Reported in Fed. Supp., 2020 WL 9264842
Footnotes
1 Page references to documents identified by docket number are to the page numbers assigned by the CM/ECF
docketing system maintained by the Clerk's Office. Paragraph numbers are used where documents identified
by the CM/ECF docket number contain consecutively numbered paragraphs. Unless noted, excerpts from the
record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar
have not been corrected.
2 Christopher Tapia is the Inmate Grievance Program (“IGP”) Supervisor at Mid-State. (Dkt. No. 23-1 at ¶ 3.)
3 If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Order and Report-Recommendation 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).
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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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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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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Johnson v. Fraizer, Not Reported in Fed. Supp. (2016)
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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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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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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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Johnson v. Fraizer, Not Reported in Fed. Supp. (2016)
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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.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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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 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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McGee v. McGready, Not Reported in Fed. Supp. (2018)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
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.
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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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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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Ruiz v. Link, Not Reported in Fed. Supp. (2022)
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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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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] ).
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Webb v. Fessette, Not Reported in Fed. Supp. (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Red Flag
Report and Recommendation Rejected by Webb v. Fessette, N.D.N.Y.,
September 23, 2025
2025 WL 1859012
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael WEBB, Plaintiff,
v.
Eric M. FESSETTE, et al., Defendants.
9:23-cv-1577 (ECC/TWD)
|
Signed January 22, 2025
Attorneys and Law Firms
MICHAEL WEBB, Plaintiff, pro se, 90-A-4906, Franklin
Correctional Facility, P.O. Box 10, Malone, NY 12953.
OLIVIA R. COX, ESQ., NEW YORK STATE ATTORNEY
GENERAL, Attorneys for Defendants, NYS Office of The
Attorney General, The Capitol, Albany, NY 12224.
REPORT-RECOMMENDATION AND ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge
I. INTRODUCTION
*1 This matter has been referred for a report and
recommendation by the Hon. Elizabeth C. Coombe, United
States District Judge, pursuant to 28 U.S.C. § 636(b) and
Local Rule 72.3(c). Plaintiff Michael Webb (“Plaintiff”),
an incarcerated individual in the custody of the New York
State Department of Corrections and Community Supervision
(“DOCCS”), commenced this action pursuant to 42 U.S.C.
§ 1983. See generally, Dkt. No. 1. 1 Currently before the
Court is the Defendants’ motion for summary judgment. Dkt.
No. 17. For the reasons set forth below, the undersigned
recommends the Defendants’ motion be granted.
II. BACKGROUND
Plaintiff filed a complaint containing allegations of
wrongdoing that occurred while he was incarcerated at
Clinton Correctional Facility (“Clinton CF”), along with
a motion to proceed in forma pauperis. See generally,
Dkt. Nos. 1-3. By order dated January 23, 2024, the Hon.
Mae A. D'Agostino, United States District Judge, found
Plaintiff's Eighth Amendment excessive force and failure
to intervene claims against “defendants John Doe #1, John
Doe #2, Fessette, Bell, Fittin, Mullady, and Minckler” were
sufficient to survive initial review. Dkt. No. 7 at 10. Counsel
subsequently appeared on behalf of Defendants Bell, Fessette,
Fittin, Minckler, and Mullady (the “named defendants”). See
Dkt. No. 13.
On March 26, 2024, the named defendants filed a motion
for summary judgment, alleging Plaintiff failed to exhaust
his administrative remedies before commencing this action.
See generally, Dkt. No. 17. Plaintiff filed two letter motions
requesting an extension of time to respond to the defendants’
motion, Dkt. Nos. 21, 24, which the undersigned granted, Dkt.
Nos. 22, 25. Plaintiff also filed a third letter request seeking
court assistance to address an alleged medical issue and his
lost property, Dkt. No. 26, and on May 9, 2024, out of an
abundance of solicitude, the undersigned directed the Clerk
to send Plaintiff copies of his complaint and the defendants’
motion, and extended the deadline to file a response, Dkt.
No. 27. Plaintiff has not filed a response in opposition to the
defendants’ motion. 2
III. LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure,
summary judgment is warranted 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); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-52 (1986).
The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); Salahuddin v.
Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). 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; see Jeffreys
v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005). The
movant may meet this burden by showing 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.
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*2 If the moving party satisfies its burden, the nonmoving
party must move forward with specific facts showing there
is a genuine issue for trial. Salahuddin, 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 Electric Industrial Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Conclusory
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).
The Second Circuit instructs that on summary judgment
motions, “ ‘[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.’ ” Jeffreys, 426 F.3d at 554 (alteration and
emphasis in original) (quoting Anderson, 477 U.S. at 252).
In other words, “a nonmoving party must offer some hard
evidence showing that [his] version of the events is not
wholly fanciful.” Id. (citation and internal quotation marks
omitted). Accordingly, statements “that are devoid of any
specifics, but replete with conclusions, are insufficient to
defeat a properly supported motion for summary judgment.”
Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
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. Major League Baseball
Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008).
Where a party is proceeding pro se, the court is obligated to
“read [the pro se party's] 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).
However, that status “does not relieve [a pro se] 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 and
citation omitted).
In applying the summary judgment standard, the district
court should not weigh evidence or assess the credibility of
witnesses. Hayes v. New York City Dep't of Corr., 84 F.3d 614,
619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d
Cir. 1996) (“Assessments of credibility and choices between
conflicting versions of the events are matters for the jury, not
for the court on summary judgment.”).
IV. ANALYSIS
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). The
Supreme Court has held “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). Inmates must
exhaust their administrative remedies even if they are
seeking only money damages that are not available in prison
administrative proceedings. See Giano v. Goord, 380 F.3d
670, 675 (2d Cir. 2004), abrogated on other grounds, Ross v.
Blake, 578 U.S. 632 (2016).
Further, “the PLRA exhaustion requirement requires proper
exhaustion.” Woodford v. Ngo, 548 U.S. 81, 93 (2006). In
order to properly exhaust his administrative remedies, an
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, 548 U.S. at 81).
DOCCS has a well-established inmate grievance process, set
forth in 7 N.Y.C.R.R. § 701 et seq.
*3 First, a grievance is submitted to the facility's Inmate
Grievance Resolution Committee (“IGRC”) within twenty-
one days of the incident. 7 N.Y.C.R.R. §§ 701.5(a)(1),
701.3(b), 701.5(b). The policy provides for a period to
informally resolve the grievance, and thereafter to proceed
through the various steps in the appeal process. Id. § 701.5(b)-
(d). However, a more expedited procedure applies to “those
grievances that allege employee misconduct meant to annoy,
intimidate or harm an inmate.” Id. § 701.2(e); see id. § 701.58.
Such a grievance is given a calendar number and recorded
with all other grievances but is forwarded directly to the
facility superintendent. Id. § 701.8(b). The superintendent
then has twenty-five days to investigate and render a written
response. Id. § 701.8(f). If the superintendent fails to render
a decision within said time period, or rules against the
incarcerated individual, the grievant may appeal to the Central
Office Review Committee (“CORC”). Id. § 701.8(g). CORC
has thirty days to review each appeal and render a decision.
Id. § 701.5(d)(3). Exhaustion of the grievance procedure only
occurs after CORC has rendered its decision. Torres v. Carry,
672 F. Supp. 2d 338, 344 (S.D.N.Y. 2009).
Because non-exhaustion is an affirmative defense, the
defendant bears the burden of showing that an incarcerated
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individual has failed to satisfy the exhaustion requirements.
Jones, 549 U.S. at 216. “Whether the plaintiff has exhausted
his administrative remedies is a question of law .... Thus, an
inmate's failure to exhaust administrative remedies is properly
considered on a motion for summary judgment in lieu of an
answer.” Jenkins v. Short, No. 9:19-CV-1352 (GTS/TWD),
2020 WL 9264842, at *5 (N.D.N.Y. Nov. 17, 2020) (citing
Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir. 1999))
(additional citations omitted), report and recommendation
adopted, 2021 WL 958512 (N.D.N.Y. Mar. 15, 2021).
Here, the alleged deprivation of Plaintiff's constitutional
rights by the named defendants at Clinton CF occurred on
May 5, 2021. See Dkt. No. 1 at 4. Plaintiff was housed at
Clinton CF from February 28, 2019, until June 22, 2021. Dkt.
No. 17-8 at 4; Dkt. No. 17-9 at 3. Plaintiff filed a grievance
at Clinton CF regarding the May 5, 2021, incident, dated
May 17, 2021, which was received by Clinton CF's IGP
office on May 24, 2021, designated a “code 28,” and assigned
Grievance No. “CL-0508-21.” Dkt. No. 17-10 at 2; see also
Dkt. No. 17-8 at 4-5.
On June 3, 2021, the Clinton CF IGRC dismissed and
closed Grievance No. CL-0508-21. Dkt. No. 17-10 at 5;
see also Dkt. No. 17-8 at 4-5. Plaintiff appealed the
IGRC's response. See Dkt. No. 17-10 at 6. Pursuant to
DOCCS Directive 4040, Inmate Grievance Program (“IGP”)
Supervisor C. Gregory reviewed Plaintiff's request to appeal
the grievance and determined “this grievance should not
have been Dismissed and Closed. Due to the allegations
contained in the grievance ... grievance CL-0508-21 will be
forwarded to the Superintendent level for an investigation
and response.” Dkt. No. 17-10 at 4. On June 24, 2021,
Plaintiff was transferred to Woodbourne Correctional Facility
(“Woodbourne CF”). Dkt. No. 17-8 at 5; Dkt. No. 17-9 at 3.
On August 18, 2021, Clinton CF Superintendent E. Bell
issued a decision denying Plaintiff's grievance, which was
forwarded to Plaintiff at Woodbourne CF. Dkt. No. 17-10
at 7; Dkt. No. 17-8 at 5. In a letter to the Clinton IGP
Supervisor dated September 8, 2021, Plaintiff “advised that
since August 24, 2021,” he had been “placing my Grievance
appeal #CL-0508-21 in the mailbox here at the Woodbourne
Correctional Facility only to have it returned to be days
later.” Dkt. No. 17-11 at 1. The letter was received by
Clinton CF on September 14, 2021. Id. In a letter dated
September 14, 2021, Clinton IGP Supervisor Gregory advised
Plaintiff under “Directive #4040, section 701.6, (h)(2),” a
grievant transferred to another facility “must mail the signed
appeal form back to the IGP supervisor at the facility where
the grievance was filed. Therefore, you need to send your
grievance appeal directly to the IGP office at Clinton C.F.”
Dkt. No. 17-12 at 1.
*4 A Woodbourne CF legal mail log indicates Plaintiff
signed for receipt of a letter from the Clinton CF IGP
Supervisor on September 27, 2021. Dkt. No. 17-7 at 1; Dkt.
No. 17-5 at 2-3. However, “Plaintiff never sent an appeal of
grievance CL-0508-21 to the IGP Office at Clinton CF to
be sent to CORC.” Dkt. No. 17-8 at 5. A search of CORC
records, conducted March 22, 2024, reveals no appeal of
the Superintendent's denial of Plaintiff's grievance was ever
received, despite Plaintiff's appeals of other facility-level
grievance determinations. Dkt. No. 17-3 at 4-5; Dkt. No. 17-4
at 1-4.
Therefore, the undersigned finds Plaintiff failed to exhaust
his administrative remedies prior to commencing the instant
action. See, e.g., Bennett v. Fletcher, No. 9:17-CV-0849
(GTS/CFH), 2020 WL 872491, at *7 (N.D.N.Y. Jan. 16,
2020) (“ ‘It is well-established that an inmate who does not
appeal to CORC has failed to exhaust his administrative
remedies.’ ”) (quoting Omaro v. Annucci, 68 F. Supp. 3d 359,
364 (W.D.N.Y. 2014), report and recommendation adopted,
2020 WL 871156 (N.D.N.Y. Feb. 21, 2020)). Accordingly,
the Court recommends the named defendants’ motion for
summary judgment be granted. See, e.g., Jenkins, 2020 WL
9264842, at *7 (recommending granting the defendants’
motion for summary judgment, where there was “no genuine
issue of material fact that Plaintiff failed to exhaust his
administrative remedies,” and dismissal of the complaint
with prejudice, explaining “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.”) (citing Berry v. Kerik, 366 F.3d 85,
87 (2d Cir. 2004)).
Finally, with regard to Plaintiff's claims against the John Doe
defendants, the undersigned recommends dismissal due to:
(1) Plaintiff's failure to comply with Judge D'Agostino’s order
to “take reasonable steps to ascertain the identities of the
‘Doe’ defendants,” Dkt. No. 7 at 11, under FED. R. CIV.
P. 16(f); (2) Plaintiff's failure to prosecute under FED. R.
CIV. P. 41(b) and N.D.N.Y. L.R. 41.2(a); and (3) Plaintiff's
failure to serve the complaint on the Doe defendants within
90 days, as required by FED. R. CIV. P. 4(m). See, e.g., Davis
v. Doe, No. 9:16-CV-0994 (MAD/DJS), 2017 WL 8640829,
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at *5 (N.D.N.Y. Dec. 29, 2017), report and recommendation
adopted, 2018 WL 1582230 (N.D.N.Y. Mar. 27, 2018). 3
V. CONCLUSION
Accordingly, it is hereby
RECOMMENDED that Defendants’ motion for summary
judgment (Dkt. No. 17) be GRANTED; and it is further
RECOMMENDED that Plaintiff's Eighth Amendment
excessive force and failure to intervene claims against the
named defendants be DISMISSED WITH PREJUDICE;
and it is further
RECOMMENDED, that Plaintiff's claims against Defendant
Joe Doe #1 and John Doe #2 be DISMISSED sua sponte; and
it is further
ORDERED that the Clerk provide to Plaintiff a copy of this
Report-Recommendation and Order, along with copies of the
unpublished decisions cited herein in accordance with the
Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d
Cir. 2009) (per curiam).
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. 4 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 (2d Cir. 1993) (citing Small v. Sec'y of Health
and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72.
*5 IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2025 WL 1859012
Footnotes
1 Citations to the parties’ submissions will refer to the pagination generated by CM/ECF, the Court's electronic
filing system. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in
the original and errors in spelling, punctuation, and grammar have not been corrected.
2 This matter was reassigned to Hon. Judge Coombe by text order dated January 15, 2015. Dkt. No. 29.
3 The undersigned further notes even if the John Doe defendants had been properly named, dismissal of
the claims against those defendants would be proper due to plaintiff's failure to exhaust his administrative
remedies.
4 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. 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).
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Webb v. Fessette, Slip Copy (2025)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 2711067
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael WEBB, Plaintiff,
v.
Eric M. FESSETTE, et al., Defendants.
9:23-cv-1577 (ECC/TWD)
|
Signed September 23, 2025
Attorneys and Law Firms
Michael Webb, Plaintiff, pro se.
Olivia R. Cox, Asst. Att'y Gen., for Named State Defendants.
MEMORANDUM-DECISION AND ORDER
Elizabeth C. Coombe, United States District Judge:
I. INTRODUCTION
*1 Plaintiff Michael Webb commenced this civil rights
action asserting claims under 42 U.S.C. § 1983 arising
out of his incarceration at Clinton Correctional Facility
(C.F.). Dkt. No. 1. On March 26, 2024, the named
Defendants filed a pre-answer motion for summary judgment
seeking dismissal of Plaintiff's claims based on his failure
to exhaust available administrative remedies as required
by the Prison Litigation Reform Act (PLRA), 42 U.S.C.
§ 1997e(a). Dkt. No. 17. This matter was assigned to
United States Magistrate Judge Thérèse Wiley Dancks who
issued a Report-Recommendation and Order on January 22,
2025, recommending that Defendants’ unopposed motion
for summary judgment be granted and that the John Doe
Defendants be dismissed sua sponte. Dkt. No. 30. Plaintiff
filed an objection to the Report-Recommendation on April 18,
2025. Dkt. No. 37.
II. STANDARD OF REVIEW
This Court reviews de novo those portions of the Magistrate
Judge's findings and recommendations 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). “A proper objection is one that identifies
the specific portions of the [report-recommendation] that
the objector asserts are erroneous and provides a basis for
this assertion.” Kruger v. Virgin Atl. Airways, Ltd., 976 F.
Supp. 2d 290, 296 (E.D.N.Y. 2013) (internal quotation marks
omitted). Properly raised objections must be “specific and
clearly aimed at particular findings” in the report. Molefe
v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485, 487
(S.D.N.Y. 2009). “[E]ven 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). Findings
and recommendations as to which there was no properly
preserved objection are reviewed for clear error. Id.
III. DISCUSSION
A. Exhaustion of Administrative Remedies Under the
PLRA
Magistrate Judge Dancks recommended granting summary
judgment to the Defendants on exhaustion grounds. Dkt.
No. 30 at 5-8. Specifically, Magistrate Judge Dancks found
that because Plaintiff never sent an appeal of grievance
CL-0508-21 to the IGP Office at Clinton C.F. to be sent to
CORC, he failed to exhaust his administrative remedies. Id. at
7-8. Plaintiff objects to Magistrate Judge Danck's conclusion
that he failed to exhaust his administrative remedies. Plaintiff
contends that Woodbourne C.F. officers were “deliberately
attempting to intercept, or delay” Plaintiff's grievance appeal.
Dkt. No. 37.
In light of Plaintiff's objection, the Court reviews this
issue de novo and, after careful consideration, declines to
adopt Magistrate Judge Dancks’ recommendation granting
summary judgment on the basis of exhaustion. 1 Magistrate
Judge Dancks properly set forth the legal standard for
exhaustion of administrative remedies in her report-
recommendation. Dkt. No. 30 at 5-6. In addition to
those standards, the Court further notes that although the
PLRA mandates exhaustion of administrative remedies, it
also “contains its own, textual exception to mandatory
exhaustion.” Ross v. Blake, 578 U.S. 632, 642 (2016).
Specifically, the exhaustion requirement contained in §
1997e(a) “hinges on the ‘availability’ of administrative
remedies: An inmate, that is, must exhaust available remedies,
but need not exhaust unavailable ones.” Id. (citing 42 U.S.C.
§ 1997e(a)) (alterations in original). In Ross, the Supreme
Court identified three circumstances in which a court may
find administrative remedies are not “available” for PLRA
purposes, holding:
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*2 [A]n 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 .... Next,
an administrative scheme might be
so opaque that it becomes, practically
speaking, incapable of use .... And
finally, ... when prison administrators
thwart inmates from taking advantage
of a grievance process through
machination, misrepresentation, or
intimidation.
Id. at 643-44. In these situations, exhaustion is not
required. Further, the Second Circuit has observed “the
three circumstances discussed in Ross do not appear to be
exhaustive ....” Williams v. Correction Officer Priatno, 829
F.3d 118, 124 n.2 (2d Cir. 2016).
Because the failure to exhaust administrative remedies is
an affirmative defense, the defendant bears the burden of
showing that an incarcerated individual has failed to satisfy
the exhaustion requirements. See Jones v. Bock, 549 U.S.
199, 216 (2007). Then the plaintiff must establish the
administrative review process was unavailable to him under
Ross. See id. “While the burden of production may shift to a
plaintiff when a court considers whether the grievance process
was unavailable, the ultimate burden of proof with respect
to the exhaustion defense remains, at all times, with the
defendant.” Hudson v. Kirkey, No. 9:20-cv-0581 (LEK/DJS),
2021 WL 1966721, at *3 (N.D.N.Y. May 17, 2021) (citing
Coleman v. Nolan, No. 9:15-cv-0040, 2018 WL 4732778, at
*4 (N.D.N.Y. Oct. 2, 2018)) (alteration in original). “Only
in the rarest of cases may summary judgment be granted
against a plaintiff who has not been afforded the opportunity
to conduct discovery.” Hellstrom v. U.S. Dep't of Veterans
Affs., 201 F.3d 94, 97 (2d Cir. 2000) (citations omitted).
Here, the record is, at best, incomplete as to the availability
of Plaintiff's administrative remedies following the alleged
May 5, 2021 incident. There is no dispute that Plaintiff filed
an initial grievance concerning the underlying incident at
Clinton C.F. in May 2021. Dkt. Nos. 17-10 at 2; 17-8 at
4-5. Plaintiff was subsequently transferred to Woodbourne
C.F. on June 27, 2021. Dkt. Nos. 17-8 at 5; 17-9 at 3. On
August 18, 2021, the Clinton C.F. Superintendent issued a
decision denying Plaintiff's grievance, which was forwarded
to Plaintiff at Woodbourne C.F. Dkt. Nos. 17-10 at 7; 17-8 at
5. On September 8, 2021, Plaintiff sent a letter to the Clinton
IGP Supervisor, with the subject heading “Correspondence
Department blatantly refuses to mail out grievance appeal
address [sic] to Clinton I.G.R.C. Supervisor.” Dkt. No. 17-10
at 26. In the letter, Plaintiff advised:
*3 ... I have been placing
my grievance appeal ... in the
mailbox here at the Woodbourne
Correctional Facility only to have
it returned to me days later. Today
is the fourth time the I.G.R.C. or
inmate correspondence program has
returned this grievance appeal to me,
therefore, I'm respectfully requesting
an exception to the time limit ... to
preserve my rights to due process.
Id. The Clinton IGP Supervisor responded to Plaintiff in a
September 14, 2021 letter, explaining that if Plaintiff wished
to appeal, he “must mail the signed appeal form back to the
IGP [S]upervisor at the facility where the grievance was filed.
Therefore, you need to send your grievance appeal directly to
the IGP office at Clinton C.F.” Dkt. No. 17-12. A Woodbourne
C.F. legal mail log indicates Plaintiff signed for receipt of a
letter from the Clinton C.F. IGP Supervisor on September 27,
2021. Dkt. Nos. 17-7 at 1; 17-5 at 2-3. CORC records indicate
that no appeal of the Clinton C.F. Superintendent's denial of
Plaintiff's grievance was ever received. Dkt. Nos. 17-3 at 4-5;
17-4 at 1-4.
The Court agrees with Magistrate Judge Dancks’
determination that Plaintiff failed to exhaust his
administrative remedies. The documents submitted by
Defendants in support of their motion, including Clinton
IGP records and CORC records, reveal that no appeal was
received by CORC. See 7 N.Y.C.R.R. § 701.5(d); see also,
e.g., Shabazz v. Bailey, No. 9:20-cv-0057 (LEK/TWD), 2023
WL 5779533, at *5 (N.D.N.Y. June 28, 2023) (“Plaintiff's
failure to appeal [his] grievance ... to CORC means Plaintiff
failed to properly exhaust his administrative remedies before
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filing this action.”), report and recommendation adopted,
2023 WL 5622049 (N.D.N.Y. Aug. 31, 2023).
However, Plaintiff's failure to appeal his grievance to CORC
does not end the exhaustion inquiry. As explained above, an
inmate's failure to properly exhaust administrative remedies
does not preclude an action under § 1983 where prison
officials thwart his efforts to utilize the grievance process,
thus rendering it unavailable to him. See generally, Ross,
578 U.S. at 643-44. Here, the Court finds that a question
of fact exists as to whether DOCCS’ grievance process was
fully available to the Plaintiff. Plaintiff maintains that prison
officials at Woodbourne C.F. deliberately interfered with his
ability to appeal to CORC by interfering with his mail.
To be sure, courts in this circuit have consistently found
inmates’ general claims that grievances were lost or destroyed
insufficient to excuse the PLRA's exhaustion requirement.
See, e.g., Rosado v. Fessetto, No. 9:09-cv-0067 (DNH/
ATB), 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010)
(collecting cases), report and recommendation adopted, No.
9:09-CV-67, 2010 WL 3809991 (N.D.N.Y. Sept. 21, 2010);
Rodriguez v. Cross, No. 9:15-cv-1079 (GTS/CFH), 2017
WL 2791063, at *7 (N.D.N.Y. May 9, 2017), report and
recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June
27, 2017). However, in this case Plaintiff's September 8, 2021
letter corroborates his present contention, noting that on four
separate occasions he placed his grievance appeal addressed
to the “Clinton I.G.R.C. Supervisor” in the Woodbourne C.F.
mailbox, only for the appeal to be returned to him, unmailed,
days later.
In support of their motion, Defendants have submitted the
affidavit of Megan Nolan, an Office Assistant at Woodbourne
C.F. who is “familiar with the mailroom procedure in regard
to receiving, logging, and dispatching mail to incarcerated
individuals at Woodbourne C.F.” Dkt. No. 17-5 at 1. However,
Ms. Nolan's affidavit does not in any way address Plaintiff's
contention regarding the handling of Plaintiff's appeals by
Woodbourne C.F. It is also unclear how the Clinton IGP
Supervisor's response directing Plaintiff to mail his appeal
to the IGP Supervisor at the facility where the grievance
was filed (which the record suggests Plaintiff was already
doing) provided Plaintiff with any remedy to the situation.
The response did not expressly grant Plaintiff an extension of
time to appeal, nor does it squarely address the issue Plaintiff
raised concerning Woodbourne C.F.’s alleged interference
with his mail. On these facts, the Court concludes that this
case is distinguishable from those allegations which have
been found inadequate to excuse non-compliance with IGP
requirements, particularly at this early stage in the litigation.
*4 “Because Plaintiff has not yet had an opportunity to
conduct discovery to support his exhaustion theory, the Court
finds Defendants’ request for summary judgment premature.”
Johnson v. Owens, No. 9:20-cv-0982 (LEK/CFH), 2022 WL
958127, at *4 (N.D.N.Y. Mar. 30, 2022) (collecting cases);
see Murray v. Noeth, No. 6:19-cv-6342, 2022 WL 4467691,
at *5 (W.D.N.Y. Sept. 26, 2022) (“[A]t this stage of the
proceedings and with no discovery having been conducted, it
would not be appropriate to resolve [the exhaustion] issue just
based on the papers.”); see also Croney v. Russell, No. 9:23-
cv-1188 (DNH/PJE), 2025 WL 1089520, at *3 (N.D.N.Y.
Feb. 25, 2025) (“Summary judgment is a ‘drastic device’
and ‘should not be granted when there are major factual
contentions in dispute[,] ... particularly ... when, as here,
one party has yet to exercise its opportunities for pretrial
discovery.’ ”) (alterations in original) (quoting Nat'l Life Ins.
Co. v. Solomon, 529 F.2d 59, 61 (2d Cir. 1975)), report-
recommendation adopted, 2025 WL 854718 (N.D.N.Y. Mar.
19, 2025).
In the alternative to summary judgment, Defendants request
an evidentiary hearing on the issue of exhaustion pursuant
to Messa v. Goord, 652 F.3d. 305 (2d Cir. 2011). Dkt. No.
17-13 at 10. However, “doing so here without the benefit of
discovery would not be the most efficient manner in which
to resolve the factual disputes presented here.” Croney v.
Medbury, No. 9:23-cv-1449 (DNH/DJS), 2024 WL 5294279,
at *4 (N.D.N.Y. Nov. 12, 2024), report-recommendation
adopted, 2024 WL 4986160 (N.D.N.Y. Dec. 5, 2024). 2
Accordingly, Defendants’ motion for summary judgment is
denied with leave to renew upon the completion of discovery.
B. Dismissal of John Doe Defendants
Magistrate Judge Dancks recommended sua sponte dismissal
of the John Doe Defendants due to (1) Plaintiff's failure to
comply with Judge D'Agostino’s order to “take reasonable
steps to ascertain the identities of the ‘Doe’ defendants”
under Fed. R. Civ. P. 16(f); (2) Plaintiff's failure to prosecute
under Fed. R. Civ. P. 41(b) and N.D.N.Y.L.R. 41.2(a); and
(3) Plaintiff's failure to serve the Complaint on the Doe
defendants within 90 days, as required by Fed. R. Civ. P. 4(m).
Dkt. No. 30 at 8-9. Magistrate Judge Dancks further noted
that dismissal of the Doe Defendants was proper in light of
her finding that Plaintiff failed to exhaust his administrative
remedies. Id. at 9 n. 3. Plaintiff objects to the dismissal of
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the John Doe Defendants, identifying his pre-litigation efforts
to obtain the identity of these Defendants via FOIL requests,
as well as his March 14, 2024 letter to the Court seeking
assistance identifying the Doe Defendants. Dkt. No. 37 at 1-2.
In light of Plaintiff's objections, the Court reviews this
issue de novo and, upon careful consideration, declines to
adopt Magistrate Judge Dancks’ recommendation to sua
sponte dismiss the Doe Defendants at this juncture. Plaintiff
commenced this action on December 15, 2023 by the filing
of a Complaint. Dkt. No. 1. Upon initial review pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b),
the Court issued a Decision and Order on January 23, 2024
ordering that Plaintiff's Eighth Amendment excessive force
and failure-to-intervene claims against the Doe Defendants,
among others, survived review and require a response. Dkt.
No. 7. In its decision, the Court ordered that Plaintiff take
reasonable steps to ascertain the identities of the “Doe”
Defendants and when identified, seek to amend the Complaint
to add these individuals as defendants in this action pursuant
to Federal Rule of Civil Procedure 15(a). Id. at 11. The
Court further warned Plaintiff of the consequences of his
failure to timely pursue amendment. As previously noted,
Plaintiff subsequently wrote to the Court on approximately
March 14, 2024, seeking assistance identifying the Doe
Defendants and explaining his efforts to date. Dkt. Nos. 15,
16. Defendants’ pre-answer motion for summary judgment
was filed on March 26, 2024. Dkt. No. 17. The following day,
the Court issued a Text Order denying Plaintiff's request for
assistance identifying the Doe Defendants as premature. Dkt.
No. 20. The Court explained that
*5 [i]n the event this action survives
the pending motion, counsel will be
directed to answer the complaint,
after which time a Mandatory Pretrial
Discovery and Scheduling Order shall
issue, which will require counsel
to provide documentation to assist
with identifying the “Doe” defendants
to the extent such information is
available.
Id.
As previously set forth, the Court declines to dismiss
Plaintiff's Complaint at this juncture for failure to exhaust his
administrative remedies. Plaintiff is otherwise entitled to the
benefit of at least some discovery to identify the unknown
Defendants before dismissal would be appropriate. See Brown
v. Doe, No. 96-cv-1222, 1999 WL 893070, at *2 (S.D.N.Y.
Oct. 18, 1999) (deferring defendants’ motion to dismiss until
they have provided the requisite discovery information and
materials to the pro se prisoner litigant on the grounds that
“[p]laintiffs, especially pro se incarcerated plaintiffs should
be given an opportunity to identify ... unknown defendants
through discovery”).
IV. CONCLUSION
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Dancks’ Report-
Recommendation, Dkt. No. 30, is REJECTED, and it is
further
ORDERED that Defendants’ motion for summary judgment,
Dkt. No. 17, is DENIED with leave to renew, and it is further
ORDERED that the case be referred to Magistrate Judge
Dancks to reset Defendants’ answer deadline and for general
pretrial management; and it is further
ORDERED that, at such time as discovery on the exhaustion
issue has been completed, Defendants may file a renewed
motion for summary judgment and/or request permission to
hold an exhaustion hearing; and it is further
ORDERED that the Clerk of the Court serve a copy of this
Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 2711067
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Footnotes
1 Plaintiff failed to respond to Defendants’ motion for summary judgment. Plaintiff's failure to oppose
Defendants’ 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. See Jackson v. Federal Express,
766 F.3d 189, 194 (2d Cir. 2014) (a non-response to a summary judgment motion does not risk default
because the district court must ensure that each statement of material fact is supported by the record evidence
sufficient to satisfy the movant's burden of production even if the statement is unopposed) (citing Vermont
Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241, 242-46 (2d Cir. 2004) (even when a motion for
summary judgment is not opposed, the district court is not relieved of its duty to decide whether the movant
is entitled to judgment as a matter of law)).
2 The Supreme Court recently held that “parties are entitled to a jury trial on PLRA exhaustion when that issue
is intertwined with the merits of a claim protected by the Seventh Amendment.” Perttu v. Richards, 605 U.S.
460, 479 (2025). At this juncture, it does not appear the exhaustion question is intertwined with Plaintiff's
Eighth Amendment excessive force and failure to intervene claims at issue and, therefore, an evidentiary
hearing before the Court may be appropriate after discovery.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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