Dimitri v. Superintendent et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
ROBERT DIMITRI,
Plaintiff,
v. 	9:24-cv-00273 (AMN/PJE)
ERIC VELIE, 	et al.,
Defendants.
______________________________________
APPEARANCES: 	OF COUNSEL:
ROBERT DIMITRI
22-B-2482
Attica Correctional Facility
P.O. Box 149
Attica, New York 14011
Plaintiff 	pro se
HON. LETITIA JAMES 	CHI-HSIN E. ENGELHART, ESQ.
New York State Attorney General 	Assistant Attorney General
The Capitol
Albany, New York 12224
Attorneys for Defendants
Hon. Anne M. Nardacci, United States District Judge:
ORDER
I. 	INTRODUCTION
On February 26, 2024, plaintiff 	pro se 	Robert Dimitri (“Plaintiff”), who was incarcerated
in the custody of the New York State Department of Corrections and Community Supervision
(“DOCCS”) at all relevant times, commenced 	this action pursuant to 42 U.S.C. § 1983 in
connection with alleged misconduct that occurred 	at Great Meadow Correctional Facility (“Great
Meadow”) on September 16, 2023 and September 17, 2023. 	See 	Dkt. No. 1. Plaintiff sought and
was granted leave to proceed 	in forma pauperis. Dkt. Nos. 2, 4, 8. On May 10, 2024, the Court,
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on initial review pursuant to 28 U.S.C. § 1915, dismissed all but Plaintiff’s Eighth Amendment
excessive force claims against Defendants Velie and Butler (“Defendants”). Dkt. No. 8 at 15.1 	On
September 30, 2024, Plaintiff amended his complaint, 	see 	Dkt. No. 17, and on November 20, 2024,
the Court, on initial review, again dismissed all but Plaintiff’s excessive force claims against
Defendants Velie and Butler. Dkt. No. 20 at 12. On May 19, 2025, Defendants filed a motion to
dismiss and a motion for summary judgment pursuant to Rule 12(b)(6) and Rule 56 of the Federal
Rules of Civil Procedure. Dkt. 	No. 34 (“Motions”). The parties 	have fully briefed the Motions.
See 	Dkt. Nos. 39, 42. 	This matter was referred to United States Magistrate Judge Paul J.
Evangelista, who, on February 5, 2026, issued a Report-Recommendation and Order (“Report-
Recommendation”) recommending that Defendants’ Motions be 	denied. 	Dkt. No. 45 at 36.
Magistrate Judge Evangelista advised that under 28 U.S.C. § 636(b)(1), the parties had fourteen
days 	within 	which 	to 	file 	written 	objections 	and 	that 	failure 	to 	object 	to 	the 	Report-
Recommendation within fourteen days would preclude appellate review. 	Id. Defendants timely
filed objections on February 19, 2026, 	see 	Dkt. No. 46, and Plaintiff filed a response on March 2,
2026. Dkt. Nos. 47, 48.
For the reasons set forth below, the Court adopts the Report-Recommendation.
II. 	STANDARD OF REVIEW
This Court reviews 	de novo 	those portions of a magistrate judge’s report-recommendation
that have been properly preserved with a specific objection. 	Petersen v. Astrue, 2 F. Supp. 3d 223,
228 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). 	If no specific objections have been filed, this
Court reviews a magistrate judge’s report-recommendation for clear error. 	See Petersen, 2 F.
1 	Citations to court documents utilize the pagination generated by CM/ECF, the 	Court’s electronic
filing system.
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Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition).
Similarly, if an objection simply rehashes arguments originally presented to the magistrate judge,
this Court reviews the relevant portions of the report-recommendation for clear error. 	See
Petersen, 2 F. Supp. 3d at 228-29 & n.6 (collecting cases). 	“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.’” 	Dezarea W. v. Comm’r of Soc. Sec., No. 21-cv-1138, 2023
WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting 	Canady v. Comm’r of Soc. Sec., No. 17-
cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)).
“[I]n a 	pro se 	case, the court must view the submissions by a more lenient standard than
that accorded to ‘formal pleadings drafted by lawyers.’” 	Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting 	Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). The Second Circuit has held that courts 	are obligated to “make reasonable allowances
to protect 	pro se 	litigants” from inadvertently forfeiting 	legal rights merely because they lack a
legal education. 	Id. (quoting 	Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even 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); 	accord Caldwell v. Petros, No.
22-cv-567, 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 	14, 2022). After appropriate review, “the
court may accept, reject or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
III. 	DISCUSSION
The Court adopts those aspects of the Report-Recommendation 	to which no party has
raised a specific objection, finding no clear error therein, including the background and the legal
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framework set forth in the Report-Recommendation, familiarity with which is presumed for
purposes of this decision.
A. Motion to Dismiss
Defendants object to Magistrate 	Judge Evangelista’s determination that the Court may
consider Plaintiff’s exhibits, 	see 	Dkt. No. 1 at 7-47, which are attached to his original Complaint,
but not his Amended Complaint, in evaluating Defendants’ motion to dismiss. 	See 	Dkt. No. 46 at
5-7. 	Specifically, Defendants contend that the Report-Recommendation erred in considering
Plaintiff’s exhibits to be incorporated by reference in the Amended Complaint or as a written
instrument attached to it under Rule 10(c) of the Federal Rules of Civil Procedure. 	See id. 	at 6.
Magistrate Judge Evangelista found that Plaintiff’s exhibits were both “incorporated by
reference” and “integral to the complaint,” 	see 	Dkt. No. 45 at 14 (collecting cases), and
accordingly, 	in 	evaluating 	Defendants’ 	motion 	to 	dismiss, 	Magistrate 	Judge 	Evangelista
considered the Amended Complaint, together with the original Complaint and its attached exhibits,
and recommended that Defendants’ 	motion to dismiss be denied. 	See id. 	at 10, 15.
The Court agrees. A district court considering a dismissal pursuant 	to Rule 12(b)(6) “may
consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and
documents incorporated by reference in the complaint[.]” 	Wilkerson v. Waffner, No. 14-cv-469,
2015 WL 1446243, at *3 n.4 (N.D.N.Y. Mar. 30, 2015) (quoting 	DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010)). In this case, as Magistrate Judge Evangelista noted, this Court
concluded in its initial review of the Amended Complaint that requiring Plaintiff to re-file his
Amended Complaint to include the exhibits attached to his original Complaint “would be ‘an
unnecessary procedural hoop that would waste resources and delay resolution of this action.” Dkt.
No. 45 at 9 (quoting Dkt. No. 20 at 2 n.1). 	Indeed, this Court 	noted that “[a]lthough it is well
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settled that an amended complaint supersedes a prior complaint in its entirety, it is clear to the
court that [P]laintiff intended to attach the exhibits to his [A]mended [C]omplaint.” Dkt. No. 20
at 2 n.1 (quoting 	Wellington v. Langendorf, No. 12-cv-1019, 2013 WL 3753978, at *3 n.2
(N.D.N.Y. July 15, 2013)). Therefore, Magistrate Judge Evangelista noted that due to Plaintiff’s
pro se 	status, in its initial review of the Amended Complaint, this Court considered the exhibits
attached to the original Complaint as incorporated by reference in the Amended Complaint. Dkt.
No. 45 at 9 	(citing Dkt. No. 20 at 2 n.1); 	see also Commey v. Adams, No. 22-cv-18, 2022 WL
3286548, at *1 n.2 (S.D.N.Y. Aug. 11, 	2022) (“Given [p]laintiff’s 	pro se 	status, the Court finds it
appropriate to consider any relevant facts that he raises throughout his pleadings 	and affidavits.”).
For these same reasons, the Court continues to consider the exhibits as incorporated by
reference in the Amended Complaint in evaluating Defendants’ motion to dismiss. 	See, e.g., 	Diaz
v. Roberts, No. 19-cv-6872, 2022 WL 13947504, at *6 (W.D.N.Y. Oct. 24, 2022) (considering the
exhibits attached to the original complaint, which 	pro se 	plaintiff did not re-file with the amended
complaint in a motion to dismiss for failure to exhaust administrative remedies, “apparently not
for any strategic reason but simply 	because he had already filed them”); 	see also Donhauser v.
Goord, 314 F. Supp. 2d 119, 212 (N.D.N.Y. 2021) 	(noting that “in cases where a 	pro se 	plaintiff
is faced with a motion to dismiss, it is appropriate for the court to consider materials outside of the
[operative] complaint to the extent they are consistent with the allegations in the [operative]
complaint”) (collecting cases); 	Briggs v. SCO Fam. of Servs., No. 16-cv-3882, 2021 WL 7209010,
at *2 (E.D.N.Y. Oct. 20, 2021) (considering a 	pro se 	plaintiff’s allegations set forth in prior
complaints and their respective attachments).
Even assuming 	arguendo 	that Plaintiff’s exhibits are not 	incorporated by reference, the
Court may nevertheless consider them if the Amended Complaint relies heavily upon their terms
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and effect, thereby rendering the documents integral to the Amended Complaint. 	United States ex
rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021) (quoting 	DiFolco, 622 F.3d at 111); 	see
also Solano v. New York, No. 20-cv-1378, 2021 WL 4134793, at *3 (N.D.N.Y. Sept. 10, 2021).
However, “even if a document is ‘integral’ to the [Amended] [C]omplaint, it must be clear on the
record that no dispute exists regarding the authenticity or accuracy of the document” and “there
exist no material disputed issues of fact regarding the relevance of the document.” 	Foreman, 19
F.4th at 106 (quoting 	DiFolco, 622 F.3d at 111). Here, the documents that Plaintiff attached to his
original Complaint, which contain, 	inter alia, notarized grievance letters and appeal letters
addressed 	to 	the 	inmate 	grievance 	resolution 	committee 	(“IGRC”), 	central 	office 	review
committee (“CORC”), and Superintendent, regarding the alleged September 16 and September 17,
2023 excessive force incidents, as well as a letter Plaintiff received from the Inmate Grievance
Program Supervisor regarding the list of Plaintiff’s grievances on file, are integral to his Amended
Complaint. Given that Plaintiff affirmatively pled that he attempted to grieve his excessive force
claims against Defendants, “[d]ocuments associated with th[ose] grievance[s] are, therefore,
integral to and referenced in the [Amended] 	Complaint,” and the Court may consider them. 	Gunn
v. Annucci, No. 20-cv-2004, 2021 WL 1699949, at *3 (S.D.N.Y. April 29, 2021); 	see also Solano,
2021 WL 4134793, at *3 (noting that courts have found grievance documents to be incorporated
by reference or integral to a complaint that alleges having filed a grievance). 	Moreover,
Defendants do not dispute that the exhibits are integral to the Amended Complaint nor object to
their accuracy, relevance, or authenticity. 	See 	Dkt. No. 46 at 5-7.
Accordingly, the Court denies 	Defendants’ motion to dismiss.2
2 	In concluding that Plaintiff’s exhibits were incorporated by reference and integral to the Amended
Complaint, Magistrate Judge Evangelista found that it was not necessary to determine whether
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B. 	Motion for Summary Judgment
Defendants also object to Magistrate Judge Evangelista’s 	determination that summary
judgment is not warranted on Plaintiff’s excessive 	force claims. 	See 	Dkt. No. 46 at 8-11.
Specifically, Defendants contend that Magistrate Judge Evangelista erred in finding a genuine
issue of material fact as to whether Plaintiff exhausted his administrative remedies based on
Plaintiff’s conclusory assertions that his excessive force grievances were not processed. 	Id. 	at 10.
Prior to challenging prison conditions in federal court pursuant to 42 U.S.C. § 1983, the
Prison Litigation Reform Act requires an incarcerated individual to first exhaust his available
administrative remedies. 	See Ross v. Blake, 578 U.S. 632, 635 (2016) (citing 42 U.S.C. §
1997e(a)). Magistrate Judge Evangelista noted that in New York, administrative remedies consist
of a three-tiered Inmate Grievance Program, which begins with the incarcerated individual filing
a grievance within 21 calendar days of the alleged incident. 	See 	Dkt. No. 45 at 22 (citing N.Y.
Comp. Codes R. & Regs. (“NYCRR”) tit. 7, § 701.5(a)(1)). The grievance is initially reviewed
by the IGRC; upon appeal of the IGRC’s decision, it 	is reviewed by the facility superintendent;
and upon appeal of the superintendent’s decision, it is reviewed by the CORC, which makes the
final administrative determination. 	See id. 	at 22-23 (citing NYCRR §§ 701.5(b)-(d)); 	see also
Williams v. Corr. Officer Priatno, 829 F.3d 118, 119 (2d Cir. 2016). Additionally, Magistrate Judge
Evangelista noted that grievances regarding alleged harassment are subject to expedited review,
but the regulations also require that the incarcerated individual receive a response from CORC in
order to exhaust administrative review. 	See 	Dkt. No. 45 at 23 (citing NYCRR § 701.8(c)).
“However, 	prisoners are exempt from the exhaustion requirement when administrative
Plaintiff’s exhibits are “written instruments” under Rule 10(c) 	of the Federal Rules of Civil
Procedure. 	See 	Dkt. No. 45 at 14. The Court agrees and likewise declines to do so here.
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remedies are ‘unavailable.’” 	Lucente v. Cnty. of Suffolk, 980 F.3d 284, 311 (2d Cir. 2020) (quoting
Ross, 578 U.S. at 642). 	An administrative procedure is unavailable when (i) “it operates as a
simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved
inmates”; (ii) “an administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use”; and (iii) “when prison administrators thwart inmates from taking advantage of
a grievance process through machination, misrepresentation, 	or intimidation.” 	Williams, 829 F.3d
at 123-24 (quoting 	Ross, 578 U.S. at 633).
The failure to exhaust administrative remedies is an affirmative defense. 	Id. 	at 122. “Thus,
first, a defendant must show that a grievance process governs the dispute at issue and that a plaintiff
has failed to exhaust it” and then “[i]n response, a plaintiff can show either exhaustion or
unavailability as outlined in 	Ross 	and its progeny.” 	Booker v. Flint, No. 22-cv-600, 2025 WL
1663999, at *3 (N.D.N.Y. June 12, 2025) (citations omitted).
As an initial matter, the Court agrees with 	Magistrate Judge Evangelista’s finding that
Defendants have sufficiently demonstrated that a grievance procedure existed, and Plaintiff failed
to exhaust administrative remedies related to the alleged September 16 and September 17, 2023
excessive force incidents. Dkt. No. 45 at 29 (collecting cases); 	see also 	Dkt. No. 34-6 at ¶¶ 26-27
(stating that DOCCS records show that Plaintiff did not file any grievances concerning the alleged
use of force incidents on September 16, 2023 and September 17, 2023 and had not appealed any
facility-level grievances regarding the alleged use of force incidents). 	Defendants raise no
objections regarding this point.
Accordingly, the Court proceeds to assess whether Defendants adequately demonstrated
the absence of a material factual dispute regarding the availability of the grievance process at Great
Meadow.
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First, the Court finds that Defendants fail to distinguish the facts of this case with the
Second Circuit’s decision in 	Williams. In 	Williams, the plaintiff alleged that, while he was housed
in the Special Housing Unit (“SHU”), he drafted 	a grievance that he delivered to a corrections
officer to forward to the grievance office on his behalf, but after being transferred to a different
facility, he never received a response and alleged that the grievance was never filed by the
corrections officer to whom he had given it. 	See 	829 F.3d at 120-21. 	The Second Circuit held
that, under those circumstances, the regulations did not adequately outline the process to appeal or
otherwise 	exhaust 	administrative 	remedies 	because “[o]n 	their 	face, 	the 	regulations 	only
contemplate 	appeals 	of 	grievances 	that 	were 	actually 	filed,” 	thereby 	rendering Plaintiff’s
administrative remedies unavailable. 	Id. 	at 124.
“The court recognizes that an inmate-plaintiff’s ability to 	process his grievances are
curtailed to some extent while confined to the SHU.” 	Simpson v. Price, No. 19-cv-1413, 2021 WL
7367083, at *9 (N.D.N.Y. Dec. 29, 2021) (citing 	Rodriguez v. Cross, No. 15-cv-1079, 2017 WL
2791063, at *7 (N.D.N.Y. May 9, 2017)); 	see also Blake v. Porlier, No. 18-cv-1008, 2019 WL
7484052, at *6 (N.D.N.Y. Oct. 4, 2019) (noting that courts take into account “an inmate’s housing
and level of segregation from the general population . . . when determining the availability of
grievance procedures”). According to the record, Plaintiff was housed in the Behavioral Housing
Unit (“BHU”) with a cell shield order on August 16, 2023. 	See 	Dkt. No. 1 at 13. Like the SHU,
the BHU is a separate housing location within a correctional facility that provides services to a
target population of incarcerated individuals “who have a demonstrated history of treatment
resistance and poor custodial adjustment/behavior[.]” 	See 	Allah v. Murphy, No. 14-cv-438, 2016
WL 4401069, at *1 n.1 (N.D.N.Y. May 16, 2016), 	report and recommendation adopted, 2016 WL
4386013 (N.D.N.Y. Aug. 17, 2016), 	aff’d, 699 F. App’x 41 (2d Cir. 2017). 	Incarcerated
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individuals 	who are housed in the BHU 	“would otherwise be serving 	a confinement sanction in a
[SHU].” 	Id. 	Plaintiff’s cell shield order was renewed on September 16, 2023, and then again, on
October 9, 2023. 	See 	Dkt. No. 1 at 11, 13. 	Moreover, according to Defendants’ submissions,
Plaintiff continued to remain in the BHU at Great Meadow until he was transferred to a different
correctional facility on December 19, 2023. 	See 	Dkt. No. 34-3 at 2; 	see also 	Dkt. No. 34-2 at ¶
13.
Here, Plaintiff, while housed in the BHU, alleges that he drafted grievances for which he
never received a response, claiming 	that Great Meadow “was not recording [his] grievances,” and
further alleges that “excessive 	force grievances are not processed” at Great Meadow because of
the level of “gang assaults by the staff.” Dkt. No. 	39 at 1-2. In support of his allegations, Plaintiff
submitted numerous notarized grievance letters and appeal letters addressed to the IGRC, CORC,
and Superintendent, stating that he had not received a response to his grievances pertaining to the
alleged use of force incidents, even after being transferred to a different facility. 	See, e.g., Dkt.
No. 1 at 30-31, 34, 39-46; 	see also Johnson v. Owens, No. 20-cv-982 (AMN/CFH), 2023 WL
5351017, at *5 (N.D.N.Y. Aug. 21, 2023) (“If an inmate 	is transferred to another facility while a
grievance is pending, a response to the grievance shall be mailed to the inmate at the new facility.”
(citing NYCRR § 701.6(h)(1))). For example, in a letter dated October 31, 2023, Plaintiff stated
that he still had not received a response to the grievances he wrote on September 28, October 1,
and October 2, 2023, related to the alleged excessive force incidents on September 16 and
September 17, 2023. 	Dkt. No. 1 	at 26-27. 	“In applying 	Williams, this Court has held that it is
sufficient for a plaintiff to submit a sworn statement that he gave his grievance to a correction
officer, and the plaintiff is not then required to produce a greater amount of evidence than normally
required of a non-movant at the summary judgment stage.” 	Smith v. Dodge, No. 18-cv-1066, 2022
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WL 19771697, at *9 (N.D.N.Y. Jan. 19, 2022) (internal quotation marks, citations, and brackets
omitted), 	report and recommendation adopted, 2023 WL 2986826 (N.D.N.Y. Apr. 18, 2023).
Thus, viewing the facts in the light most favorable to Plaintiff, the record suggests that a
question of fact exists as to whether Plaintiff attempted to submit grievances that were never filed
or answered, as Plaintiff claims, or whether Plaintiff never filed any grievances, as Defendants
claim. 	See McLean v. LaClair, No. 19-cv-1227, 2021 WL 671650, at *9 (N.D.N.Y. Feb. 22, 2021)
(finding that defendants “failed to demonstrate the absence of a material factual dispute as to
whether the grievance process . . 	. was ‘unavailable’ due to the machinations or misrepresentations
of prison officials who inhibited the filing of [p]laintiff’s submissions”). Accordingly, the Court
concludes that Plaintiff has raised a genuine dispute of material fact that forecloses Defendants’
summary judgment motion at this juncture. 	See Croney v. Russell, No. 23-cv-1188, 2025 WL
1089520, at *3 (N.D.N.Y. Feb. 25, 2025) (noting that 	“[s]ummary 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” (internal quotation
marks, citation, and alterations omitted)).
Magistrate Judge Evangelista 	found Defendants’ request 	to conduct limited discovery
regarding the issue of exhaustion to be appropriate in this case. 	See 	Dkt. No. 45 at 35. 	“[I]t is
common practice in district courts across the Second Circuit to permit parties to conduct limited
discovery on the issue of exhaustion in cases filed by incarcerated individuals.” 	Adams v.
Berkman, No. 24-cv-873, 2025 WL 2318706, at *2, 5-6 (N.D.N.Y. Aug. 12, 2025) (adopting
magistrate judge’s recommendation to deny summary judgment and order discovery on the
exhaustion issue, followed by an exhaustion hearing, where “the record suggests that [p]laintiff’s
grievances were submitted, but were unfiled and unanswered, creating an issue of fact as to
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whether the grievance process was available”). 	The Court agrees with Magistrate Judge
Evangelista’s recommendation.
For the foregoing reasons, Defendants’ 	motion for summary judgment is denied.
IV. 	CONCLUSION
Accordingly, the Court hereby
ORDERS 	that the Report-Recommendation, Dkt. No. 45, is 	ADOPTED 	for the reasons
stated herein; and the Court further
ORDERS 	that Defendants’ motion to 	dismiss, Dkt. No. 34, is 	DENIED; and the Court
further
ORDERS 	that Defendants’ motion for summary judgment, Dkt. No. 34, is 	DENIED
without prejudice; and the Court further
ORDERS 	that the case be referred to Magistrate Judge Evangelista to facilitate the
completion of discovery on the limited issue of exhaustion; and the Court further
ORDERS 	that, at such time as discovery on the exhaustion issue has been completed,
Defendants shall request permission from Magistrate Judge Evangelista to file a renewed motion
for summary judgment and/or hold an exhaustion hearing; and the Court further
ORDERS 	that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 27, 2026
Albany, New York
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