Hubbert v. Monroe County Sheriffs Department et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ISAAC HUBBERT,
Plaintiff,
v.
MONROE COUNTY SHERIFF’S
DEPARTMENT et al.,
Defendants.
22-CV-1009-LJV-JJM
DECISION & ORDER
On December 27, 2022, the pro se plaintiff, Isaac Hubbert, commenced this
action under 42 U.S.C. § 1983. Docket Item 1. Hubbert amended his complaint three
times, see Docket Item 5 (amended complaint); Docket Item 8 (second amended
complaint); Docket Item 23 (third amended complaint), and this Court screened the
second and third amended complaints under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A,
Docket Items 22 and 35. Ultimately, the Court dismissed all of Hubbert’s claims except
his failure-to-intervene claim against Monroe County Sheriff’s Department Officer John
McCrone and his equal protection claim against Monroe County Sheriff’s Department
Officer Thomas M. Parker.1 See Docket Item 35 at 1-2, 20.
After McCrone and Parker answered the third amended complaint, Docket Item
42, this Court referred the case to United States Magistrate Judge Jeremiah J.
McCarthy for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket Item 44.
1 In his second and third amended complaints, Hubbert named these defendants
only as “Parker” and “McCrone.” See Docket Item 8 at 2; Docket Item 23 at 2; see also
Docket Item 35 at 4 n.3. Because the defendants’ filings include their full names, see
Docket Item 64-3 at 1, the Court refers to those names here. The Clerk of the Court
shall update the docket accordingly.
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On October 31, 2024, the defendants moved for summary judgment, Docket Item 64;
and Hubbert responded, Docket Item 67.2 Judge McCarthy heard oral argument on the
motion, Docket Item 69, and on December 30, 2024, he issued a Report and
Recommendation (“R&R”) recommending that the defendants’ motion be granted in part
and denied in part. Docket Item 70. Both Hubbert and the defendants objected to the
R&R, Docket Item 71 (defendants’ objection); Docket Item 72 (Hubbert’s objections),
and this Court set a briefing schedule on those objections, Docket Item 73. The
defendants responded to Hubbert’s objections, Docket Item 74, but Hubbert did not
respond to their objection and the time to do so has passed, see Docket Item 73.
A district court may accept, reject, or modify the findings or recommendations of
a magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). The court must
review de novo those portions of a magistrate judge’s recommendation to which a party
objects. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).
This Court has carefully and thoroughly reviewed the R&R, the record, the
objections, and the defendants’ response. Based on that de novo review, the Court
accepts and adopts Judge McCarthy’s recommendation to grant in part and deny in part
the defendants’ motion for summary judgment.
DISCUSSION3
Hubbert’s claims against the defendants relate to two distinct incidents. See
Docket Items 8 and 23; see also Docket Item 35 at 3-6. First, he says that McCrone
2 The defendants did not reply.
3 The Court assumes the reader’s familiarity with the underlying facts, see Docket
Items 8, 23, and 42; see also Docket Item 35 at 3-6 (summarizing Hubbert’s
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failed to intervene to prevent Hubbert from being assaulted by another inmate at the
Monroe County Jail on December 11, 2022. See Docket Item 23 at 7; Docket Item 35
at 5; Docket Item 70 at 2. Second, he says that the next month, in January 2023,
Parker destroyed his cell and wrote a racial slur on his mattress in violation of Hubbert’s
right to equal protection. See Docket Item 8 at 7; Docket Item 35 at 5; Docket Item 70
at 3.
The defendants argue that summary judgment should be granted in their favor
because (1) Hubbert failed to properly exhaust his administrative remedies as to either
of his claims; (2) Hubbert’s claim that McCrone failed to intervene is “controverted by
the surveillance video” of the incident submitted by the defendants; and (3) Hubbert’s
equal protection claim against Parker is not supported by sufficient evidence to proceed
to trial. Docket Item 64-3 at 4-8. Judge McCarthy recommended that this Court accept
only the last of those arguments. Docket Item 70 at 5-11. More specifically, Judge
McCarthy found that there are genuine issues of material fact as to whether Hubbert
properly exhausted his claims and whether McCrone failed to intervene in violation of
Hubbert’s constitutional rights. Id. at 5-9. But he found that summary judgment should
be granted in Parker’s favor on Hubbert’s equal protection claim because there was no
admissible evidence in the record showing that Parker was personally involved in the
January 2023 mattress incident. Id. at 9-11.
Both the defendants and Hubbert filed objections. Docket Items 71 and 72.
allegations), and Judge McCarthy’s analysis in the R&R, see Docket Item 70, and it
refers to them only as necessary to explain its decision here. On a motion for summary
judgment, the court construes the facts in the light most favorable to the non-moving
party—here, Hubbert. See Collazo v. Pagano, 656 F.3d 131, 134 (2d Cir. 2011).
Throughout this decision, some capitalization is omitted when quoting Hubbert’s filings.
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I. THE DEFENDANTS’ OBJECTION
The defendants’ sole objection to the R&R relates to Judge McCarthy’s
recommendation that summary judgment be denied on exhaustion grounds. See
Docket Item 71.
Under the Prison Litigation Reform Act of 1995 (“PLRA”), prisoners may not
commence an action in federal court regarding “prison conditions” without first
exhausting all available administrative remedies. 42 U.S.C. § 1997e(a); see Perttu v.
Richards, 145 S. Ct. 1793, 1798 (2025). But the Supreme Court has held that
administrative remedies are unavailable—and thus, that exhaustion is not required by
the PLRA—under three circumstances. See Romano v. Ulrich, 49 F.4th 148, 153 (2d
Cir. 2022) (citing Ross v. Blake, 578 U.S. 632, 643 (2016)). More specifically,
exhaustion is not required (1) “when (despite what regulations or guidance materials
may promise) [the grievance process] operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when the
“administrative scheme [is] so opaque that it becomes, practically speaking, incapable
of use”; and (3) “when prison administrators thwart inmates from taking advantage of a
grievance process through machination, misrepresentation, or intimidation.” Id. (quoting
Ross, 578 U.S. at 643-44). “Because [the] failure to exhaust is an affirmative defense,”
on a motion for summary judgment, the “defendant[] bear[s] the initial burden of
establishing . . . that a grievance process exists and applies to the underlying dispute.”
Hubbs v. Suffolk Cnty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015).
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Judge McCarthy found that there was “a genuine issue of material fact as to
whether the grievance process was available to” Hubbert.4 Docket Item 70 at 6 (some
internal quotation marks omitted) (quoting Medina v. Napoli, 725 F. App’x 51, 54 (2d Cir.
2018) (summary order)). He therefore recommended that “summary judgment [be
denied] on the basis of failure to exhaust administrative remedies.” Id.
The defendants do not object to Judge McCarthy’s finding that issues of material
fact preclude summary judgment. See Docket Item 71 at 1. But they say that instead of
denying the motion, this Court should hold “a non-jury evidentiary hearing” to “determine
the issue of whether [Hubbert] failed to exhaust his administrative remedies.” Id.
Indeed, they cite several cases—including the Second Circuit’s decision in Messa v.
Goord, 652 F.3d 305, 309 (2d Cir. 2011)—in which courts held such hearings prior to
trial. See Docket Item 71 at 1 (collecting cases).
As an initial matter, the Court notes that the defendants do not appear to have
raised this issue before Judge McCarthy. See Docket Item 64-3 at 5-6 (arguing that
there is no issue of material fact as to Hubbert’s failure to exhaust and asking the Court
to grant summary judgment on that basis). That, in itself, is reason to reject it here.
See Dallio v. Hebert, 678 F. Supp. 2d 35, 42 (N.D.N.Y. 2009) (“[A] district court will
ordinarily refuse to consider arguments, case[]law and/or evidentiary material that could
4 For the reasons explained below, this Court adopts Judge McCarthy’s
recommendation to dismiss Hubbert’s equal protection claim against Parker. See infra
Section II. So to the extent that the defendants seek a hearing on exhaustion, that
would be relevant only to Hubbert’s exhaustion of his failure-to-intervene claim against
McCrone. Nonetheless, because the defendants jointly challenge this finding, this Court
refers to both throughout this section.
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have been, but was not, presented to the [m]agistrate [j]udge in the first instance.”
(quoting Cusamano v. Sobek, 604 F. Supp. 2d 416, 425 n.1 (N.D.N.Y. 2009))).
In any event, the defendants’ argument is misplaced. That is, they may well be
entitled to a hearing on exhaustion prior to a jury trial, see, e.g., Messa, 652 F.3d at
307-08, but that is no reason to deny summary judgment, see Mago v. Finnucan, 2023
WL 4850673, at *3 (D. Conn. July 28, 2023) (denying defendants’ motion for summary
judgment based on material issues of fact concerning exhaustion under PLRA and
holding that the issue would instead be decided at evidentiary hearing before the court).
Indeed, two of the cases cited by the defendants involved hearings that were held after
the court had denied summary judgment on exhaustion grounds.5 See Messa, 652
F.3d at 307-08 (upholding district court’s use of evidentiary hearing to decide
exhaustion issue on eve of trial after district court had denied summary judgment motion
on exhaustion grounds); Murray v. Palmer, 2010 WL 1235591, at *1 (N.D.N.Y. Mar. 31,
2010) (noting that “trial in [pro se] prisoner civil rights action . . . began with an
evidentiary hearing . . . regarding the affirmative defense” of plaintiff’s failure to
exhaust); Murray v. Palmer, 2008 WL 2522324, at *1 (N.D.N.Y. June 20, 2008).
(denying defendants’ motion for summary judgment to extent motion was based on
failure to exhaust).
5 In the third case cited by the defendants—Harriot v. Annucci, 2018 WL
1210890 (W.D.N.Y. Mar. 8, 2018)—the court granted the defendants’ request for a
hearing after granting in part and denying in part the defendants’ motion for judgment on
the pleadings. See id. at *5-6. But even if that case suggests that the defendants could
have sought an evidentiary hearing before moving for summary judgment, that does not
mean that summary judgment cannot be denied until the defendants have been
afforded an evidentiary hearing.
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The Court therefore overrules the defendants’ objection without prejudice to the
defendants’ requesting an evidentiary hearing on exhaustion prior to trial.6
II. HUBBERT’S OBJECTIONS
Hubbert raises several objections. See Docket Item 72 at 1-4. But as the
defendants point out, see Docket Item 74 at 1-2, most of those “objections” relate to the
defendants’ arguments that Hubbert failed to either properly exhaust his claims or raise
a genuine issue of material fact as to his failure-to-intervene claim against McCrone.
See Docket Item 72 at 1-4. And because Judge McCarthy ultimately agreed with
Hubbert on both of those issues, see Docket Item 70 at 5-9, this Court need not address
Hubbert’s “objections” on those points.
Hubbert’s remaining objection relates to his equal protection claim against
Parker. See Docket Item 72 at 2. More specifically, Hubbert contends that this claim
should not be dismissed because “the defendant[s] never let . . . Parker put his input of
what happen[ed] on the day” of the mattress incident. Id. Hubbert therefore “ask[s] that
the [C]ourt[] allow [him] to el[a]b[o]rate on what happened” and to require “the
defendants [to] produce the footage of the dorm area on that day.” Id.
As Judge McCarthy noted, Hubbert did “not address the alleged January 2023
mattress incident” in his opposition to summary judgment and, in fact, “omitted the claim
6 The defendants should be prepared to address, in any such request, whether a
non-jury evidentiary hearing on exhaustion is consistent with the Supreme Court’s
recent decision in Perttu. In that case, the Court 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, 145 S. Ct. at 1807.
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entirely from his most recent complaint.”7 Docket Item 70 at 9 (citing Docket Items 23
and 67). Nevertheless, in light of Hubbert’s pro se status, Judge McCarthy did not
simply deem the claim abandoned but reviewed the record to determine whether there
was any admissible evidence that would preclude summary judgment. Id. at 9-11. And
because Hubbert had offered only hearsay statements and his own “unsubstantiated
belief” that Parker was personally involved in the incident, Judge McCarthy found that
Hubbert had failed to meet his burden to show that there was a genuine issue for trial
on this claim. Id. at 10-11.
Hubbert does not dispute that he failed to produce any admissible evidence
showing Parker’s personal involvement in the mattress incident. See Docket Item 72 at
2; Docket Item 70 at 9-11. Instead, he essentially says that during discovery the
defendants did not provide him with the information he needs to support his claim. See
Docket Item 72 at 2. But Hubbert did not make this argument before Judge McCarthy,
see Docket Item 70 at 9; Docket Item 67 at 1-4, and so, as above, this Court is not
inclined to consider it here, see Dallio, 678 F. Supp. 2d at 42.
What is more, even if Hubbert had properly raised this contention before Judge
McCarthy, that would not change the Court’s conclusion. “The Second Circuit has
consistently held that a party opposing a motion for summary judgment who claims to
be unable to produce evidence in opposition to the motion must file an affidavit
7 Hubbert asserted his claim against Parker only in his second amended
complaint, see Docket Item 8, and in screening that complaint, this Court found that the
claim was colorable and could proceed to service, see Docket Item 22 at 17-19.
Although Hubbert did not name Parker as a defendant in the third amended complaint,
because this Court had already deemed the claim colorable, it “liberally construe[d] the
third amended complaint as asserting a claim against Parker” and allowed that claim to
proceed. See Docket Item 35 at 4 n.3, 20.
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explaining: (1) what discovery he needs; (2) how those facts are reasonably expected to
create a genuine issue of material fact; (3) what efforts the affiant has made to obtain
those facts; and (4) why those efforts were unsuccessful.” CIT Grp./Com. Servs., Inc. v.
Prisco, 640 F. Supp. 2d 401, 409 (S.D.N.Y. 2009) (citing Burlington Coat Factory
Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 923 (2d. Cir.1985)). And while
“‘[t]he nonmoving party must have had the opportunity to discover information that is
essential to his opposition to’” summary judgment, a “request for discovery based on
‘speculation as to what potentially could be discovered’ should be denied.” Id. (first
quoting Trebor Sportswear Co., Inc. v. The Ltd. Stores, Inc., 865 F.2d 506 (2d
Cir.1989); and then quoting Nat’l Union Fire Ins. Co. of Pittsburgh, PA. v. Stroh Cos.,
Inc., 265 F.3d 97, 117 (2d Cir.2001)).
Liberally construing Hubbert’s objections, the Court finds that he has described
the specific discovery he needs: namely, testimony from Parker and footage of
Hubbert’s “dorm area” during the period in question. Docket Item 72 at 2. Moreover,
his objections suggest that those materials could “reasonably [be] expected to create a
genuine issue of material fact” by showing Parker’s personal involvement in the January
2023 incident. See CIT Grp./Com. Servs., 640 F. Supp. 2d at 409; Docket Item 72 at 2.
But Hubbert has not provided any information about any “efforts [he] made to
obtain those facts,” nor has he explained “why those efforts were unsuccessful.” See
CIT Grp./Com. Servs., 640 F. Supp. 2d at 409; Docket Item 72 at 2. Indeed, there is
nothing to indicate to this Court that Hubbert lacked “the opportunity to discover
information that is essential to his opposition to” summary judgment. See CIT
Grp./Com. Servs., 640 F. Supp. 2d at 409. For instance, he does not say that he
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attempted to depose Parker or subpoena video surveillance of the January 2023
incident or that he was unable to do so. See Docket Item 72 at 2. And nothing in the
record indicates that he made any such efforts.8 On the contrary, fact discovery in this
case closed more than a year ago. See Docket Item 63. And as Judge McCarthy
observed, Hubbert “declined three opportunities to advance his equal protection claim”:
in his most recent amended complaint, in his opposition to the defendants’ motion for
summary judgment, and at oral argument on that motion. Docket Item 70 at 10 n.6. So
at least at present, this Court has no basis to deny summary judgment to allow for more
discovery.
In sum, Hubbert has implicitly acknowledged that he has not offered sufficient
evidence for his claim to proceed, and he has not explained why he did not seek the
discovery he requests at an earlier stage in the case. See Docket Item 72; see also
Just. v. Wiggins, 2014 WL 4966896, at *6 (N.D.N.Y. Sept. 30, 2014) (granting summary
judgment where plaintiff offered only hearsay evidence in support of failure-to-intervene
claim and asked to reopen discovery to obtain testimony of a witness because “plaintiff
ha[d] offered no justification for not seeking an affidavit from or deposition of [that
witness] before the close of discovery”). The Court therefore denies his objection and
8 Over the course of this action, Hubbert has filed numerous letters and motions,
see e.g., Docket Items 25, 30, 33, 46, 55, 56, and 58, including a motion to enforce a
subpoena of footage of the December 2022 incident, Docket Item 47 at 1. But he
apparently never made any similar request about footage related to the January 2023
incident.
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adopts Judge McCarthy’s recommendation to grant summary judgment on Hubbert’s
equal protection claim.9
III. THE REMAINDER OF JUDGE MCCARTHY’S RECOMMENDATIONS
While the Court need not review any portions of an R&R to which no objections
are raised, see Thomas v. Arn, 474 U.S. 140, 149-50 (1985), this Court nevertheless
has reviewed Judge McCarthy’s R&R in its entirety, including those recommendations
to which neither party objected. See Docket Items 71 and 72. Based on that review
and the absence of any objections to those portions of the R&R, the Court accepts and
adopts in its entirety Judge McCarthy’s recommendation to grant in part and deny in
part the defendants’ motion for summary judgment. More specifically, the Court denies
the defendants’ motion for summary judgment on the basis of failure to exhaust and as
to Hubbert’s failure-to-intervene claim against McCrone, and it grants the motion as to
Hubbert’s equal protection claim against Parker.
CONCLUSION
For the reasons stated above and in the R&R, the defendants’ motion for
summary judgment, Docket Item 64, is GRANTED IN PART and DENIED IN PART.
The Clerk of the Court shall remove Parker as a defendant to this case, and Hubbert
and McCrone shall contact the Court within 30 days to schedule a status conference.
9 In light of Hubbert’s pro se status, he may ask Judge McCarthy to reopen
discovery. And should Judge McCarthy grant that request, Hubbert may then ask this
Court to reconsider its decision here.
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The Court hereby certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith and therefore denies leave to appeal as a poor
person. Coppedge v. United States, 369 U.S. 438 (1962).
SO ORDERED.
Dated: July 30, 2025
Buffalo, New York
/s/ Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
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