Drake v. Rubera et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DEVON DRAKE,
Plaintiff,
9:24-CV-24
v. 	(AJB/DJS)
TYLER RUBERA, et al.,
Defendants .
APPEARANCES: 	OF COUNSEL:
DEVON DRAKE
Plaintiff, pro se
85127-510
Allenwood Medium Federal Correctional Institution
P.O. Box 2000
White Deer, Pennsylvania 17887
HANCOCK ESTABROOK, LLP 	FRANK W. MILLER, ESQ.
Attorney for Defendants
1800 AXA Tower I
100 Madison Street
Syracuse, New York 13202
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER1
Plaintiff brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his rights while he was held at the Delaware County Jail (the “Jail”).
1 This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).
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Dkt. No. 1, Compl. 	Following review by the District Court pursuant to 28 U.S.C. §
1915(e) and 28 U.S.C. 1915A, Fourteenth Amendment excessive force and failure to
intervene claims against Defendants were permitted to proceed. Dkt. No. 5 at pp. 5-6.
Defendants now move for Summary Judgment, pursuant to Federal Rule of Civil
Procedure 56(a), seeking to dismiss the Complaint based on Plaintiff’s failure to
properly exhaust his administrative remedies and on the merits. Dkt. No. 70. Plaintiff
filed a response. Dkt. No. 77, Pl.’s Opp.
For the reasons that follow, the Court recommends that the Motion for Summary
Judgment be GRANTED based on the failure to exhaust administrative remedies.
I. BACKGROUND
On November 29, 2023, Plaintiff was incarcerated at the Jail. 	Dkt. No. 70-3,
Weaver Aff., ¶ 2. 	He was housed in the facility’s C-Pod and alleges that the named
Defendants used excessive force during the course of a shakedown in the housing unit.
Compl. at p. 4. An incident report was generated as a result of the incident. 	See Dkt.
No. 25-3 at pp. 2-3.2 That report noted that Plaintiff was disruptive and not complying
with staff direction which ultimately resulted in a correctional officer “perform[ing] a
2 This document, though not filed with the pending Motion, was filed with Defendant’s first motion for summary
judgment, and is part of the record in the case that can be relied upon in deciding the Motion. F ED. R. CIV. P.
56(c)(3); Onukwugha v. Univ. Health Sys., 2018 WL 11610713, at *1 n.2 (W.D. Tex. Dec. 7, 2018), report and
recommendation adopted, 2019 WL 13438031 (W.D. Tex. Mar. 7, 2019); Matter of Parry, 2018 WL 7198181, at
*3 (D. Mass. Sept. 13, 2018).
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takedown” of Plaintiff. Id. at p. 3. The report also indicates that a chemical agent “was
administered to [Plaintiff’s] face which allowed the officers to then gain control of
[Plaintiff’s] hands and get him secured in handcuffs.” Id. Plaintiff denies that he was
uncooperative with correctional staff and instead contends that the use of force “was
maliciously done to cause [him] harm.” Compl. at p. 4. He testified at his deposition,
for example, that he was tackled, assaulted while face down on the ground, and maced.
Dkt. No. 70-17, Pl.’s Dep. at pp. 41-42. 	Defendants Rubera, Schmid, and Valentine
deny having been involved in the use of force incident with Plaintiff. Dkt. Nos. 70-12,
¶ 6; 70-13, ¶ 7; & 70-15, ¶ 3. However, Plaintiff testified that Schmid sprayed him with
a chemical agent twice “for no apparent reasons” during the incident. Pl.’s Dep. at pp.
41-42. 	He also testified that Rubera was involved in handcuffing Plaintiff after the
incident. Id. at p. 41. Defendant Vulaj acknowledges being involved, including using
a chemical agent once, but contends that his involvement was necessitated by Plaintiff’s
aggressive conduct toward another correctional officer. Dkt. No. 70-14, Vulaj Aff., ¶¶
6-7. Plaintiff testified that Vulaj sprayed him with a chemical agent twice, after tackling
him to the ground. Pl.’s Dep. at pp. 43-44.
The Jail has a grievance policy in place for inmate complaints. Weaver Aff. at ¶
5 & Ex. A, pp. 48-49. 	The Jail has no record of Plaintiff having filed a grievance
regarding the November incident. Id. at ¶ 10. Plaintiff claims that he wrote a grievance
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and handed it to a correctional official, but that nothing ever happened with the
grievance. 	Pl.’s Dep. at p. 47. 	The individual Plaintiff purports to have given the
grievance to denies that Plaintiff ever gave him a completed grievance form. Dkt. No.
70-18, Sanchez Aff., ¶ 10.
II. SUMMARY JUDGMENT STANDARD
Pursuant to Federal Rule of Civil Procedure 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. F ED . 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
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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)).
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 Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 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 Res. 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). 	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).
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III. DISCUSSION
A. Exhaustion of Administrative Remedies
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; see also Ross v. Blake,
578 U.S. 632, 638 (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
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initiation of a civil action. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec.
28, 1999).3
The Jail had a grievance process in place. Weaver Aff., ¶ 5 & Ex. A. That policy
is contained in the inmate rule book. Id. Plaintiff received a copy of the rule book upon
admission to the facility. 	Id. at ¶ 6 & Ex. B. 	Plaintiff testified that he understood the
facility’s rules regarding grievances. Pl.’s Dep. at p. 17. Under that policy, incarcerated
individuals could file a grievance within five days of the event being grieved and the
facility should respond to the grievance within five business days. Weaver Aff., Ex. A
at pp. 48-49.
The Jail has no record of a grievance being filed with respect to the Plaintiff’s
allegations of excessive force. Weaver Aff. at ¶ 10. Plaintiff testified that he drafted a
grievance and handed it to Officer Sanchez for submission. 	Pl.’s Dep. at pp. 47-48.
Officer Sanchez denies this claim. Sanchez Aff. at ¶ 10. There is no further evidence
in the record about any attempts Plaintiff may have made to inquire about the grievance.
He testified only that he repeatedly asked to speak to a sergeant about the grievance to
no avail. Pl.’s Dep. at pp. 49-51. For example, Plaintiff testified that he never followed
up with Officer Sanchez regarding the grievance. Id. at p. 49.
3 Copies of unreported cases from Westlaw are attached to this opinion for Plaintiff’s reference.
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Plaintiff has done nothing more than allege in conclusory fashion that he
attempted to file a grievance. 	The Court concludes that those conclusory accusations
are insufficient to withstand summary judgment. 	See, e.g., Lurch v. Bui, 2020 WL
8450543, at *5 (N.D.N.Y. Dec. 8, 2020), report and recommendation adopted sub nom.
Lurch v. Jones, 2021 WL 392486 (N.D.N.Y. Feb. 4, 2021); Sankara v. Montgomery,
2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018), report and recommendation
adopted, 2018 WL 3408135 (N.D.N.Y. July 13, 2018) (collecting cases). 	The record
does not contain a copy of the grievance Plaintiff claimed to have submitted. See, e.g.,
Gibbs v. Gadway, 2019 WL 5191506, at *5 (N.D.N.Y. Oct. 15, 2019), report and
recommendation adopted, 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (conclusory
claim subject to dismissal where copies of grievances allegedly filed were not submitted
as evidence) (citing cases); Blake v. Porlier, 2019 WL 7484052, at *5 (N.D.N.Y. Oct.
4, 2019), report and recommendation adopted, 2020 WL 58613 (N.D.N.Y. Jan. 6, 2020)
(same).
Plaintiff “simply claims that he wrote grievances but received no response. In
this regard, he seems to imply that his grievances were lost or destroyed, though he does
not claim that Defendant[s] or any other specific individual or policy interfered with his
attempt to exhaust his administrative remedies.” 	Adams v. Whitehair, 2025 WL
2022588, at *9 (W.D.N.Y. July 18, 2025) (internal quotation omitted). 	In fact, the
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record demonstrates that Plaintiff did not see Sanchez destroy or tamper with the
grievance. Pl.’s Dep. at p. 48. “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.”
Holmes v. Ross, 2026 WL 575454, at *3 (N.D.N.Y. Mar. 2, 2026) (quoting Rodriguez
v. Cross, 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)).
Nor does the record suggest that when Plaintiff did not receive a response to his
grievance, which should have come within five days, Weaver Aff. at Ex. A, p. 49, he
took any formal steps to inquire about the grievance or appeal it as having being
constructively denied. At most, Plaintiff testified that he asked to speak to a Sergeant,
but no one ever came to speak with him about the grievance issue. Pl.’s Dep. at p. 51.
The Jail’s grievance policy permits an appeal of an unfavorable disposition of a
grievance. 	Weaver Aff. at Ex. A, p. 49. 	“Complete exhaustion to the highest level is
required for each claim.” 	Singh v. Goord, 520 F. Supp. 2d 487, 495 (S.D.N.Y. 2007)
(citing Veloz v. New York, 339 F. Supp. 2d 505, 514 (S.D.N.Y.2004)); see also Allah v.
Adams, 573 F. Supp. 3d 904, 909 (W.D.N.Y. 2021). Even were the Court to accept as
true that a grievance was provided to Sanchez, there is no evidence that Plaintiff sought
to avail himself of further procedures available in the Jail. “[I]f a plaintiff does not get
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a response to a grievance in the time designated by the grievance procedure - namely,
five days in the instant case - he should appeal the decision or take some action to
determine what happened with respect to the grievance.” Cruz v. DeMarco, 2013 WL
4719086, at *7 (E.D.N.Y. Sept. 3, 2013). Plaintiff did not do so.
A prisoner’s failure to exhaust administrative remedies may nonetheless be
excused if remedies were unavailable to the inmate. Ross v. Blake, 578 U.S. at 642. 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
643-44. Plaintiff bears the burden of showing the grievance process was unavailable to
him. Caldwell v. C.O. Kusminsky, 2020 WL 6162524, at *4 (N.D.N.Y. Apr. 1, 2020),
report and recommendation adopted sub nom. Caldwell v. Kusminsky, 2020 WL
6158578 (N.D.N.Y. Oct. 21, 2020).
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Plaintiff’s response to the Motion for Summary Judgment does not mention the
exhaustion 	defense 	at 	all. 	See 	Pl.’s 	Opp. 	This 	alone 	warrants 	dismissal 	for
noncompliance with the PLRA’s exhaustion requirements. See White v. Williams, 2016
WL 4006461, at *5 (N.D.N.Y. June 22, 2016), report and recommendation adopted,
2016 WL 4005849 (N.D.N.Y. July 25, 2016). Nor is there any basis for finding that an
exception applies here. As noted, Plaintiff claims to have submitted a grievance and so
he clearly did not view doing so as a “dead end.” 	See Toussaint v. Rumsey, 2024 WL
3649918, at *4 (N.D.N.Y. June 5, 2024), report and recommendation adopted sub nom.
Toussaint v. Doe #1, 2024 WL 3371074 (N.D.N.Y. July 10, 2024). Nor does the record
support a claim that the Jail’s grievance process was so opaque as to render the process
unavailable. On the contrary, the process is carefully explained in the Inmate Rule Book
and is not particularly complex. See Weaver Aff. at Ex. A. Finally, there is no claim or
evidence that anyone at the Jail interfered with Plaintiff’s ability to file a grievance. See
Pl.’s Dep. at pp. 48-51.
On the record before the Court, summary judgment based on Plaintiff’s failure to
exhaust his administrative remedies should be granted.
B. Merits of the Excessive Force Claim
Defendants also seek summary judgment on the merits of the claim. Defs.’ Mem.
of Law at pp. 6-18. Failure to exhaust is sufficient for dismissal of the Complaint, but
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the Court will consider the merits as well. 	Were the Court to reach the merits of the
claim, it is recommended that the Motion be granted as to Defendant Rubera but denied
as to the remaining individual Defendants.4
In Kingsley v. Hendrickson, the Supreme Court addressed the proper standard for
evaluating excessive force claims brought under the Fourteenth Amendment by a
pretrial detainee and concluded that “courts must use an objective standard” under which
the plaintiff “must show only that the force purposely or knowingly used against him
was objectively unreasonable.” 	576 U.S. 389, 396-97 (2015). 	As a result “Kingsley
provides the appropriate standard for all excessive force claims brought under the
Fourteenth Amendment.” Edrei v. Maguire, 892 F.3d 525, 537 (2d Cir. 2018).
Assessing the objective reasonableness of any use of force necessarily depends
on the facts and circumstances of each case, but relevant factors include:
the relationship between the need for the use of force and the amount of
force used; the extent of the plaintiff’s injury; any effort made by the
officer to temper or to limit the amount of force; the severity of the security
problem at issue; the threat reasonably perceived by the officer; and
whether the plaintiff was actively resisting.
Kingsley v. Hendrickson, 576 U.S. at 397 (citing Graham v. Connor, 490 U.S. 386, 396
(1989)). “Thus, a pretrial detainee can make a showing if the force . . . is not rationally
4 The Court notes that the Jail is listed on the docket as a Defendant. A municipal correctional facility, however,
is not a proper party to a section 1983 claim and should be dismissed. Corrow v. Nassau Cnty. Corr. Ctr., 2025
WL 580358, at *3 (E.D.N.Y. Feb. 23, 2025).
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related to a legitimate governmental purpose or that it is excessive in relation to that
purpose.’” 	Parson v. Barboza, 2016 WL 7261550, at *5 (N.D.N.Y. June 28, 2016),
report and recommendation adopted, 2016 WL 4398522 (N.D.N.Y. Aug. 18, 2016)
(quoting Kingsley v. Hendrickson, 576 U.S. at 398).
1. Defendant Rubera
Plaintiff’s sole claim related to Rubera is the allegation that Rubera handcuffed
him to a bench. 	Pl.’s Dep. at pp. 40-41. 	He testified at his deposition that he was
handcuffed and then stated specifically “No, sir” when asked if Rubera did anything
other than that. Id. at p. 41.
Generally, “the mere use of handcuffs on a prisoner at a prison facility [is not] a
per se use of excessive force.” 	Raynor v. Maldonado, 2024 WL 4533748, at *3 (D.
Conn. Oct. 21, 2024) (citing Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994)) (footnote
omitted). Rather, the question is “whether the handcuffs were applied in a manner likely
to cause pain or injury and whether they were used for wanton reasons, rather than to
maintain institutional discipline or security.” 	Id. 	“To sufficiently plead an excessive
force claim based upon tight handcuffing, the plaintiff must allege more than a
temporary injury.” 	Burroughs v. Petrone, 138 F. Supp. 3d 182, 213 (N.D.N.Y. 2015)
(quoting Jackson v. City of New York, 939 F.Supp.2d 219, 231 (E.D.N.Y.2013)). The
record does not support such a finding here.
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Plaintiff was placed in handcuffs after a use of force incident. Pl.’s Dep. at p. 41;
see also Dkt. No. 25-3 at p. 3. He makes no allegation that the handcuffs were placed
on him in a harmful way and makes no claim that he was injured as a result. Given the
nature of the allegations, no excessive force claim is viable as to these allegations and
the claim against Defendant Rubera should be dismissed.
2. Remaining Defendants
“Excessive force claims frequently involve factual disputes that make them
difficult to resolve pursuant to summary judgment.” 	Savage v. Acquino, 2018 WL
1478254, at *7 (W.D.N.Y. Mar. 23, 2018). Here, the parties do dispute the facts. Most
importantly, the parties dispute what necessitated a use of force in the first instance.
Plaintiff alleged in his Complaint that the use of force began “while I was securely
locked in my cell during a routine shakedown search.” Compl. at p. 4. He testified to a
slightly different scenario during his deposition, saying that the incident began when he
was tackled from behind while being escorted back to his cell. Pl.’s Dep. at pp. 43 &
46. Defendants, on the other hand, contend that the use of force was necessitated when
Plaintiff began to “actively resist” correctional staff during an escort. Dkt. No. 25-3 at
p. 3. 	Defendant Vulaj, who admits being involved in the use of force incident, states
that he witnessed Plaintiff “continuously and aggressively pull[] away from the other
officer.” Vulaj Aff. at ¶ 7. These differences present key factual questions on important
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issues in the legal analysis concerning “the relationship between the need for the use of
force and . . . whether the plaintiff was actively resisting.” 	Kingsley v. Hendrickson,
576 U.S. at 397.
The parties also dispute who used force and to what extent. Plaintiff claims that
he was sprayed with a chemical agent by both Schmid and Vulaj. Pl.’s Dep. at pp. 41-
43. Schmid denies this assertion. Schmid Aff. at ¶ 7. Vulaj concedes that he sprayed a
chemical agent once, Vulaj Aff. at ¶ 8, while Plaintiff claims Vulaj sprayed him twice.
Pl.’s Dep. at p. 44. 	These are essential factual disputes about who used force and the
reasonableness of that force. Summary judgment is not the proper vehicle for resolving
those conflicts.
Defendant Valentine seeks dismissal on the ground that Plaintiff did not
specifically identify him as having taken any action with respect to him during his
deposition testimony. 	Defs.’ Mem. of Law at pp. 6-9. 	Plaintiff did, however, testify
that the fourth named Defendant - Valentine is that individual according to the docket
in this matter - failed to intervene during the force used by others. Pl.’s Dep. at p. 46.
That is sufficient, given the factual issues identified above, to deny this Motion.
Much of Defendants’ Motion is predicated on the contention that Plaintiff is
making 	false 	allegations. 	See, 	e.g., 	Defs.’ 	Mem. 	of 	Law 	at 	p. 	13 	(“[t]hese
statements . . . must be measured in terms of there being no basis to ascribe any
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credibility or veracity to these statements.”). This argument, however, bears little on the
relevant legal standard. 	This Court cannot make the sort of credibility determination
Defendants seems to wish it to make at the summary judgment stage. Rupp v. Buffalo,
91 F.4th 623, 634 (2d Cir. 2024); S. Katzman Produce Inc. v. Yadid, 999 F.3d 867, 877
(2d Cir. 2021).
Defendants’ reliance on Jeffreys v. City of New York, 426 F.3d 549 (2d. Cir. 2005)
is similarly misplaced. Jeffreys provides only “a narrow exception” to the rule regarding
credibility assessments. 	Frost v. New York City Police Dep’t, 980 F.3d 231, 245 (2d
Cir. 2020). Jeffreys applies only “‘in the rare circumstance where’ a witness’s testimony
is so problematic that no reasonable juror could credit it.” Id. at 256 (quoting Jeffreys
v. City of New York, 426 F.3d at 554). Reliance on Jeffreys is not appropriate here.
“[I]n order for the Jeffreys exception to apply, the plaintiff must rely ‘almost
exclusively on his own testimony.’” 	Benitez v. Ham, 2009 WL 3486379, at *20
(N.D.N.Y. Oct. 21, 2009) (quoting Jeffreys v. City of New York, 426 F.3d at 554). 	In
addition, “the Jeffreys exception is most applicable where the plaintiff’s version of
events is contradicted by defense testimony.” 	Id. 	Here, however, neither of these
situations are presented. 	Plaintiff need not rely on solely his testimony regarding the
underlying use of force incident here, nor is his testimony contradicted in all regards.
Plaintiff and Defendants all agree that force, including a chemical agent, was used
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against Plaintiff. See, e.g., Vulaj Aff. at ¶ 7. Certainly, the parties disagree about what
precipitated the use of force and how much force was used, but those present classic
factual questions in a use of force case that do not justify application of Jeffreys. 	See
Brown v. Dubois, 2017 WL 2983305, at *8 (N.D.N.Y. June 16, 2017), report and
recommendation adopted, 2017 WL 2983011 (N.D.N.Y. July 12, 2017).
As to Schmid, Vulaj, and Valentine, the case “presents quintessential fact
questions that cannot be resolved on summary judgment.” McGinnis v. Crissell, 2018
WL 4635707, at *4 (N.D.N.Y. Apr. 18, 2018), report and recommendation adopted,
2018 WL 3970668 (N.D.N.Y. Aug. 20, 2018)). 	As a result, denying of the Motion is
recommended as to those Defendants.5
IV. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED, that the Motion for Summary Judgment (Dkt. No. 70) be
GRANTED based on Plaintiff’s failure to exhaust his administrative remedies; and it is
5 Defendants also seeks summary judgment based on qualified immunity. Defs.’ Mem. of Law at pp. 18-22. The
same factual questions underlying the merits of the claim also preclude granting summary judgment based on
qualified immunity since the right to be free from excessive force is clearly established. Thomas v. Roach, 165
F.3d 137, 143 (2d Cir. 1999) (“Summary judgment on qualified immunity grounds is not appropriate when there
are facts in dispute that are material to a determination of reasonableness.”); Kavanaugh v. Vill. of Green Island,
2018 WL 1033288, at *6 (N.D.N.Y. Feb. 22, 2018); Swift v. Mauro, 2008 WL 207793, at *7 (N.D.N.Y. Jan. 24,
2008).
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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)6 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); F ED . R. CIV . P. 72
& 6(a).
Date: 	May 28, 2026
Albany, New York
6 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. 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. C IV. P. 6(a)(1)(C).
Case 9:24-cv-00024-AJB-DJS Document 80 Filed 05/28/26 Page 18 of 18