Garcia v. Neal et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Elmer Garcia,
Plaintiff,
v. 9:25-CV-354
(MAD/MJK)
Sgt. Neal, et. al.,
Defendant.
_____________________________________________________________________
Elmer Garcia, Plaintiff, pro se
Olivia R. Cox, Esq., Asst. Attorney General, for Defendants
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Mae A. D’Agostino, U.S. District Court Judge:
ORDER & REPORT-RECOMMENDATION
United States District Court Judge Mae A. D’Agostino referred
Defendants’ summary judgment motion to the Court for report and
recommendation.1 In this pro se civil rights action, Garcia alleges that
Sgt. Neal and the John Doe correction officers violated the Eighth
Amendment by gang assaulting him. Garcia has also moved to compel
evidence from Defendants. For the following reasons, this Court denies
1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
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Garcia’s motion to compel and recommends the District Court grant
Defendants’ summary judgment.
I. BACKGROUND
A. Facts
On March 20, 2025, Garcia filed a Complaint, under 42 U.S.C.
§1983, against Sgt. Neal and two John Doe corrections officers
(“Defendants”). (Complaint, Dkt. 1). In that Complaint, Garcia alleges
that on October 9, 2024, while he was housed in Greene Correctional
Facility (“Greene”), Sgt. Neal and other corrections officers assaulted
him. (Complaint, Dkt. 1, at pg. 3).2 After the assault, the Department of
Corrections and Community Supervisions (“DOCCS”) transferred
Garcia from Greene to Coxsackie Correctional Facility (“Coxsackie”).
(Seguin Exh A., Dkt. 24-2, at pg. 7); (Garcia Depo., Dkt. 21-1, pg. 65, at
lns. 19-22). DOCCS housed Garcia at Coxsackie from October 9, 2024
until November 20, 2024. (Seguin Exh A., Dkt. 24-2, at pg. 7),
On October 31, 2024, Garcia grieved the October 9th assault.
(Seguin Exh. B, Dkt. 21-2, at pg. 12). Six days later, Coxsackie’s
superintendent referred the grievance to the Office of Special
2 All page numbers, exception the deposition transcript, refers to the CM/ECF
pagination.
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Investigations. (Id. at pg. 20). Someone mailed the Coxsackie’s
superintendent decision to Garcia. (Cobane Decl., Dkt. 21-3, pg. 6, at
¶25). But Garcia did not receive the decision until December 24, 2024.
(Id. at ¶26). Garcia, who was now back at Greene, signed the form and
noted his desire to appeal the unfavorable decision. (Id. at pg. 14);
(Seguin Exh A., Dkt. 24-2, at pg. 7).
Yet on January 2, 2025, J. Salvatore, Coxsackie’s Inmate
Grievance Program (“IGP”) Supervisor, denied Garcia’s appeal as
untimely. (Cobane Decl., Dkt. 21-3, at pg. 16). In response, Garcia sent
a letter to Salvatore noting that Garcia received the letter after his time
to appeal ended. (Id. at pg. 18). Salvatore then reached out to J.
Talerico, Greene’s IGP supervisor, to verify Garcia’s statement. (Id. at
pgs. 19-20). Talerico confirmed the accuracy of Garcia’s statement and
counseled Salvatore to re-open the grievance. (Id. at pg. 20).
On February 22, 2025, after the DOCCS strike began, DOCCS
processed Garcia’s appeal of the superintendent’s decision, sending the
appeal to the Central Office Review Committee (“CORC”). (Id., pg. 7, at
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¶32).3 Garcia filed his Complaint before receiving a decision from
CORC. (Garcia Deposition, Dkt. 21-1, pg. 79, at lns. 7-9). Although
CORC needed to respond to Garcia’s appeal by March 26, 2025, CORC
did not rule on Garcia’s appeal until October 2, 2025. (Seguin Decl.,
Dkt. 21-2, pg. 5, at ¶18-19).
B. Procedural History
Judge D’Agostino reviewed Garcia’s Complaint, under 28 U.S.C.
§1915, and decided, among other things, that Garcia’s Eighth
Amendment excessive force claim survived initial review and required a
response. (Dkt. 8). Soon after, Defendants answered the Complaint.
(Dkt. 15). Quickly, the parties began discovery. During the discovery
process, Garcia moved to compel evidence from Defendants. (Dkt. 18).
Defendants requested an extension of time to respond to the motion,
which this Court granted. (Dkts. 19, 20). Now, Defendants move for
summary judgment, arguing that Garcia failed to exhaust the
administrative remedies available to him before beginning this action.
(Dkt. 21). Garcia requested this Court enlarge his time to respond to
3 On the appeal form, where the grievance clerk’s signature is normally placed, is a
notation of “facility lockdown” (Colbane Exh. B, Dkt. 21-3, at pg. 14).
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Defendants’ summary judgment motion. (Dkt. 24). The Court deals with
those motions below.
II. STANDARD OF REVIEW
Summary Judgment
“Summary Judgment is appropriate only if the movant shows that
there is no genuine issue as to any material fact.” Tolan v. Cotton, 572
U.S. 650, 656-57 (2014) (cleaned up). When deciding if there is a
genuine issue of material fact, courts “must view the evidence in the
light most favorable to the” non-moving party. Id. at 656 (cleaned up).
Likewise, courts must “resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party opposing
summary judgment.” Kessler v. Westchester County Dep’t of Social
Services, 461 F.3d 199, 206 (2d Cir. 2006). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“The moving party bears the initial burden of showing that there
is no genuine dispute as to a material fact.” CILP Assocs., L.P. v.
Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) “When
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the moving party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec., 475 U.S. at 586. “The
nonmoving party may not rely on mere conclusory allegations nor
speculation but instead must offer some hard evidence showing that its
version of the events is not wholly fanciful.” D’Amico v. City of New
York, 132 F.3d 145,149 (2d Cir. 1998) (cleaned up).
“If the defendant in a run-of-the-mill civil case moves for summary
judgment,” judges “must ask” themselves “not whether” they “think the
evidence unmistakably favors one side or the other but whether a fair-
minded jury could return a verdict for the plaintiff on the evidence
presented. The 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.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). “A court cannot credit a plaintiff’s
merely speculative or conclusory assertions.” DiStiso v. Cook, 691 F.3d
226, 230 (2d Cir. 2012).
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III. DISCUSSION
The Court recommends the District Court dismiss Garcia’s
Complaint without prejudice because Garcia started this lawsuit before
fully exhausting the administrative remedies available to him, but he
has cured that defect. The Court also denies Garica’s motion to compel
as moot.
A. Garcia filed this lawsuit before fully exhausting the
administrative remedies available to him.
The District Court should find that Garcia did not exhaust the
administrative remedies available to him. Incarcerated individuals
must exhaust their administrative remedies before bringing claims to
Federal Court, unless the administrative procedures are functionally
unavailable. Here, Garcia began this lawsuit before CORC ruled on his
appeal. In consequence, this Court recommends finding that Garica did
not exhaust the administrative remedies available to him.
The Prison Litigation Reform Act (PLRA) governs federal civil
rights litigation by inmates. Under the PLRA, “no action shall be
brought with respect to prison conditions under § 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
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available are exhausted.” 42 U.S.C. § 1997e(a) (cleaned up). “The
PLRA’s exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular episodes.”
Porter v. Nussle, 534 U.S. 516, 532 (2002) (cleaned up). “Exhaustion is
mandatory—unexhausted claims may not be pursued in federal court.”
Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (citations omitted).
To exhaust administrative remedies, an incarcerated individual must
complete all the administrative review procedures according to the rules
applicable to the institution in which they are confined. Jones v. Bock,
549 U.S. 199, 218 (2007). “Untimely or otherwise procedurally defective
attempts to secure administrative remedies do not satisfy the PLRA’s
exhaustion requirement.” Ruggiero v. County of Orange, 467 F.3d 170,
176 (2d Cir. 2006) (cleaned up).
The PLRA’s exhaustion requirement does not apply if the remedy
is not functionally available to the incarcerated individual. See Ross v.
Blake, 578 U.S. 632, 642 (2016). There are three “circumstances in
which an administrative remedy, although officially on the books, is not
capable of use to obtain relief.” Id. at 643.
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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. (citation omitted).
Second, “an administrative scheme” is unavailable, when it is “so
opaque that it becomes, practically speaking, incapable of use.” Id. at
643-644. “When an administrative process is susceptible of multiple
reasonable interpretations” the incarcerated individual “should err on
the side of exhaustion.” Id. at 644. “But when a remedy is . . .
essentially ‘unknowable’ —so that no ordinary prisoner can make sense
of what it demands—then it is also unavailable.” Id. (citation omitted).
Third, an administrative procedure is unavailable when “prison
administrators thwart” incarcerated persons “from taking advantage of
a grievance process through machination, misrepresentation, or
intimidation.” Id.
DOCCS has a three-step-grievance process. The first step requires
an incarcerated individual to file a complaint with the facility’s
incarcerated grievance program clerk within 21 days of the alleged
event. 7 N.Y.C.R.R § 701.5(a). The Incarcerated Grievance Review
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Committee reviews the complaint, investigates the allegations, and
then issues a written determination. 7 N.Y.C.R.R § 701.5(b)(1). At the
second step of the grievance process, the incarcerated person may
appeal the Committee’s determination to the facility’s superintendent. 7
N.Y.C.R.R § 701.5(c). On appeal, the superintendent reviews the
Committee’s decision and issues their own decision. Id. At the third
step, an incarcerated individual may appeal the superintendent’s
decision to the Central Office Review Committee (C.O.R.C.) for a final
administrative determination. 7 N.Y.C.R.R § 701.5(d).
The Court should grant Defendants summary judgment because
Garcia did not fully exhaust his claim before beginning this lawsuit.
“Included within the IGP’s exhaustion requirement is the requirement
that the” incarcerated individual “file an appeal with CORC and receive
a response from CORC prior to filing a federal lawsuit. White v. Drake,
No. 10-CV-1034 GTS/DRH, 2011 WL 4478988, at *3 (N.D.N.Y. Aug. 11,
2011) (cleaned up). In fact, courts regularly dismiss PLRA “claims for
failure to exhaust despite CORC’s issuance of a decision, if” the
issuance of that decision “occurred after the plaintiff filed [their] federal
complaint.” Animashaun v. Afify, 470 F. Supp. 3d 294, 297 (W.D.N.Y.
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2020) (dismissing the plaintiff’s complaint for failure to exhaust)
(collecting cases). Yet here, Garcia conceded that he filed this Complaint
with this Court before completing the grievance process. (Garcia
Deposition, Dkt. 21-1, pg. 79, at lns. 7-9). That is fatal to this lawsuit.
See, e.g., Bowie v. Woodruff, No. 18-CV-266 (BKS/ML), 2019 WL
7606078, at *5 (N.D.N.Y. Sept. 20, 2019) (cleaned up) (recommending
the District Court find that “Bowie did not fully exhaust his
administrative remedies prior to filing this lawsuit as CORC’s decision
was outstanding”). Thus, the District Court should grant Defendants
summary judgment because Garcia failed to exhaust his PLRA claim
before starting this action.
Garcia has no argument that the grievance process was
unavailable to him because he has now fully exhausted the
administrative process. Garcia navigated DOCCS’s labyrinthine
exhaustion process reaching the final step before filing this lawsuit. See
(Garcia Deposition, Dkt. 21-1, pg. 79, at lns. 7-9). Worse for any
unavailability argument, Garcia has now fully exhausted the grievances
available to him. See (Seguin Decl., Dkt. 21-2, pg. 5, at ¶18-19) (noting
that CORC decided Garica’s appeal in October 2025). And “because the
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CORC has now rendered a decision on [Garcia’s] grievance his
administrative remedies are now exhausted. [Garcia] is therefore free to
reinstitute his lawsuit,” but this action should be “dismissed without
prejudice.” Bowie v. Woodruff, No. 18-CV-266 (BKS/ML), 2019 WL
5445519, at *2 (N.D.N.Y. Oct. 23, 2019); see Berry v. Kerik, 366 F.3d 85,
87 (2d Cir. 2004) (“[f]ailure to exhaust administrative remedies is often
a temporary, curable procedural flaw. If the time permitted for
pursuing administrative remedies has not expired, a prisoner who
brings suit without having exhausted these remedies can cure the
defect simply by exhausting them and then reinstituting his suit.”). In
sum, Garcia cannot argue that the grievance process was unavailable to
him because he navigated the grievance system and has now fully
exhausted his claim. He may therefore commence a new lawsuit.
B. The Court denies Garcia’s motion to compel as moot
because there is currently no more controversy.
Garcia’s motion to compel evidence is denied as moot. “The hallmark
of a moot case or controversy is that the relief sought can no longer be
given or is no longer needed.” Martin-Trigoa v. Shiff, 702 F.2d 380, 386
(2d Cir. 1983). Because the Court is recommending that summary
judgment be granted, there is no longer a controversy. And thus, this
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Court cannot compel Defendants to turn over evidence. But Garcia can
renew his motion to compel if he decides to bring this lawsuit again and
the discovery he seeks is not forthcoming.
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that Defendants’ motion for summary
judgment (Dkt. 21) be GRANTED without prejudice because Garcia
did not fully exhaust the administrative remedies available to him
before starting this lawsuit; and it is
ORDERED, that Garcia’s motion to compel (Dkt. 18) is DENIED
as MOOT; and it is further
ORDERED, that Garcia’s request to enlarge his time to respond
to Defendant’s summary judgment motion (Dkt. 24) is DENIED as
MOOT; and it is further
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
In accordance with 28 U.S.C. § 636(b)(1), the parties have fourteen
days within which to file written objections to the foregoing report. Such
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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) (Supp. 2013);
Fed. R. Civ. P. 72, 6(a).
Dated: April 7th, 2026
_____________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 7606078
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Edmund BOWIE, Plaintiff,
v.
Sergeant Gary WOODRUFF and Correctional Officer Kyle Brooks, Defendants.
9:18-CV-0266 (BKS/ML)
|
Signed 09/20/2019
Attorneys and Law Firms
EDMUND BOWIE, 14-B-0838, Plaintiff, pro se, Auburn Correctional Facility, P.O. Box 618, Auburn, NY 13021.
HON. LETITIA JAMES, Attorney General for the State of New York, MATTHEW P. REED, ESQ., Assistant Attorney General,
Attorney for Defendants, The Capitol, Albany, New York 12224-0341.
REPORT-RECOMMENDATION AND ORDER 1
MIROSLAV LOVRIC, United States Magistrate Judge
*1 Plaintiff pro se Edmund Bowie (“Bowie” or “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 against Defendants Sergeant Gary Woodruff (“Sgt. Woodruff”) and Correctional Officer Kyle Brooks (“C.O. Brooks”) for
violations of his rights under the Eighth Amendment. Dkt. No. 1 (“Compl.”). Presently before the Court is Defendants’ motion
for summary judgment and dismissal of Bowie's complaint pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. Dkt.
No. 29. Bowie did not oppose the motion. For the following reasons, it is recommended that Defendants’ motion for summary
judgment be granted.
I. BACKGROUND
A. Plaintiff's Failure to Respond
Before discussing the background of this case, the Court addresses Bowie's failure to respond or oppose the motion. The Second
Circuit requires that a pro se litigant defending against a summary judgment motion be notified as to the nature and consequences
of summary judgment. Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620–21 (2d Cir. 1999); see also Local Rule 56.2 (Notice to
Pro Se Litigants of the Consequences of Failing to Respond to a Summary Judgment Motion). Here, Bowie was notified of the
consequences of failing to respond to a summary judgment motion by Defendants and the Court. Dkt. No. 29 at 3; Dkt. No. 30.
Given this notice, Bowie was adequately apprised of the pendency of Defendants’ motion and the consequences of failing to
respond. On May 21, 2019, Bowie filed a Notice of Change of Address and requested an extension of time to file his response to
the motion. Dkt. Nos. 31 and 32. The Court granted the extension and directed Bowie to provide a response on or before June 21,
2019. Dkt. No. 33. Despite the extension, Bowie has not submitted opposition to Defendants’ motion for summary judgment.
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“The fact that there has been no response to a summary judgment motion does not ... mean that the motion is to be granted
automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). The Court has broad discretion to decide whether to
overlook the parties’ failures and perform an independent review of the record. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d
Cir. 2001); see also Jackson v. Fed. Exp., 766 F.3d 189, 194 (2d Cir. 2014) (noting that “the court may rely on other evidence
in the record even if uncited” in determining the undisputed material facts). If the district court chooses to conduct such an
independent review of the record, any verified complaint filed by the plaintiff should be treated as an affidavit in opposing a
motion for summary judgment. Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004).
Here, because the Complaint is verified, 2 the Court will accept the pleading as an affidavit to the extent that the statements
are based on Bowie's personal knowledge or are supported by the record. See Berry v. Marchinkowski, 137 F.Supp.3d 495,
530 (S.D.N.Y. 2005) (collecting cases to support the proposition that a court may consider unsworn assertions on a motion for
summary judgment where they are based on the plaintiff's personal knowledge and in light of special solicitude).
*2 Due to Bowie's pro se status, the Court has opted to review the entire summary judgment record to ascertain the undisputed
material facts. Consequently, the facts set forth in Defendants’ Rule 7.1 Statement of Material Facts 3 are accepted as true as to
those facts that are not disputed by the facts set forth in the Complaint. N.D.N.Y. L.R. 7.1(a)(3) (“The Court shall deem admitted
any properly supported facts set forth in the Statement of Facts that the opposing party does not specifically controvert.”)
(emphasis omitted).
B. Facts 4
At the time of the incidents described in the Complaint, Bowie was an inmate in the custody of DOCCS and confined at Great
Meadow Correctional Facility (“Great Meadow C.F.”). See generally, Dkt. No. 1.
Bowie claims that he was involved in a physical altercation with Sgt. Woodruff and C.O. Brooks on June 10, 2017. Dkt. No.
1 at 2-3. Bowie alleges that Sgt. Woodruff and C.O. Brooks used excessive force and failed to intervene to protect him from
the use of force, in violation of his Eighth Amendment rights. Id. at 4.
On June 23, 2017, Bowie filed an Inmate Grievance Complaint (Grievance No. 62268-17) related to the June 10, 2017 incident.
Dkt. No. 29-3 at 3, 6. Bowie alleged:
I was involved in a altercation in the big yard on (6-10-17) at which time I was handcuffed and taken
to the facility infirmary. While in the infirmary check up room, Sergeant John Doe asked me questions
which I answered. He said I was not trueful [sic] and proceed[ed] to slap me in the back of the head. He
asked me some more questions[,] again I answered. He once again told me I was a liar [and] told Officer
John Doe to hold me against the wall while another officer punched me in the ribs 4 or 5 times breaking
2 of my ribs which resulted in me going to Albany Med.
*3 Dkt. No. 29-3 at 6.
On July 10, 2017, the Grievance Clerk received the grievance. Dkt. No. 29-3 at 3. Due to the nature of the grievance, the Inmate
Grievance Resolution Committee (“IGRC”) forwarded the grievance directly to the facility Superintendent for review. Id.
On August 9, 2017, the Superintendent issued a decision stating that the grievance was investigated and denied. Dkt. No. 29-3 at
7. On August 21, 2017, Bowie signed the Appeal Statement indicating that he wished to appeal the Superintendent's decision to
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the Central Office Review Committee (“CORC”). Id. On August 23, 2017, the Grievance Clerk received and signed the Appeal
Statement. Id. On August 29, 2017, CORC received the appeal. Id. at 8.
On February 26, 2018, Bowie signed his civil rights Complaint and commenced the within action. Dkt. No. 1 at 5.
On October 17, 2018, CORC issued a decision affirming the Superintendent's determination. Dkt. No. 29-3 at 9.
C. Procedural History
On March 3, 2018, the Court received the Complaint in the within action. Dkt. No. 1. Upon review of the Complaint, the Court
directed Defendants to respond to the Eighth Amendment excessive force and failure-to-intervene claims. Dkt. No. 7. On June
25, 2018, Defendants filed an Answer to the Complaint. 5 Dkt. No. 13. On April 26, 2019, Defendants filed the within motion
pursuant to Fed. R. Civ. P. 56 seeking judgment as a matter of law with respect to Bowie's claims. Dkt. No. 29.
II. LEGAL STANDARD
A motion for summary judgment may be granted if there is no genuine issue as to any material fact, it was supported by affidavits
or other suitable evidence, and the moving party is entitled to judgment as a matter of law. The moving party bears the burden
of demonstrating the absence of disputed material facts by providing the court with portions of pleadings, depositions, and
affidavits which support the motion. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Facts are material
if they may affect the outcome of the case as determined by substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 317,
248 (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; 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, 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)).
*4 All ambiguities are resolved and all reasonable inferences are drawn in favor of the non-moving party. Skubel v. Fuoroli,
113 F.3d 330, 334 (2d Cir. 1997). Furthermore, where, as here, a party seeks judgment against a pro se litigant, a court must
afford the non-movant special solicitude. See Triestman v. Federal 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).
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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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
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III. DISCUSSION 6
Defendants move for summary judgment arguing that Bowie failed to exhaust his administrative remedies through available
grievance procedures prior to the commencement of this action. See generally, Dkt. No. 29.
A. Exhaustion
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.” 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. Id. at 524. To exhaust administrative remedies, the inmate must complete the
full administrative review process set forth in the rules applicable to the correctional facility in which he or she is incarcerated.
Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation omitted).
Here, there is no dispute that at all relevant times, DOCCS had in place a three-step inmate grievance program (“IGP”). N.Y.
Comp. Codes R. & Regs. title 7, § 701.5 (2015). First, the inmate must file a complaint with IGP clerk within twenty-one days
of the alleged action. 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 full IGP committee 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 CORC within seven days after receipt of the superintendent's determination. Id. §§
701.5(d)(1)(i)-(ii). If 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. Id. at §
701.5(d)(3)(i). 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). 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,
534 U.S. at 524); see also Neal v. Goord, 267 F.3d 116, 121 (2d Cir. 2001), overruled on other grounds by Porter, 534 U.S. 516.
*5 Where the grievance involves allegations of employee excessive force, as alleged by Bowie, there is an expedited
administrative process. See N.Y.C.R.R. title 7, § 701.8; see Torres v. Carry, 691 F.Supp.2d 366, 369–70 (S.D.N.Y. 2009).
Complaints and grievances of this nature are forwarded directly to the superintendent of the facility. Bell v. Napoli, No. 9:17-
CV-850 (ATB), 2018 WL 6506072, at *2 (N.D.N.Y. Dec. 11, 2018). In such cases the superintendent is required to order an
investigation and render a decision within twenty-five (25) days. See N.Y.C.R.R., title 7, § 701(a)-(f). If the superintendent fails
to respond within the required twenty-five (25) day time limit the inmate may appeal his grievance to the CORC. Disagreement
with the superintendent's decision in the expedited review process also requires an appeal to the CORC. 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). The Second Circuit has long recognized this procedure as an “available remedy” for
purposes of the PLRA. See Hall v. County of Saratoga, No. 10–CV–1120 (NAM/CFH), 2013 WL 838284, at *1–2 (N.D.N.Y.
Mar. 6, 2013).
Defendants bear the burden of establishing that a prisoner failed to satisfy the exhaustion requirement. See Jones, 549 U.S.
at 216.
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1. Did Plaintiff Exhaust his Administrative Remedies?
The record is clear that Bowie filed this action on February 26, 2018, and, at that time, CORC had yet to issue a decision on
his grievance. See Dkt. No. 1; Dkt. No. 29-3 at 9. DOCCS IGP Assistant Director Rachael Seguin (“Seguin”) declared that she
is the custodian of records maintained by CORC. Dkt. No. 29-3 at 1. Based upon Seguin's review of DOCCS’ records, Bowie
filed a grievance on June 23, 2017 claiming he was assaulted at Great Meadow on June 10, 2017. Id. at 3. Bowie's grievance
was received by the IGRC Clerk on July 17, 2017 and denied by the Superintendent on August 9, 2017. Id. at 3-4. Seguin
also reviewed CORC records for appeals received from Plaintiff relating to his allegations in this action. Id. at 3. Based upon
Sequin's review, CORC received Bowie's appeal of the Superintendent's determination on August 29, 2017 and decided the
appeal on October 17, 2018 – approximately eight months after Bowie commenced this action. Dkt. No. 29-3 at 4. A copy of
Bowie's grievance, the Superintendent's response, documentation of CORC's receipt of Bowie's appeal, and CORC's response
are attached to Seguin's Declaration as Exhibit A. Id. at 6-9.
Thus, Bowie did not fully exhaust his administrative remedies prior to filing this lawsuit as CORC's decision was outstanding.
White v. Drake, No. 10-CV-1034 (GTS/DRH), 2011 WL 4478988, at *3 (N.D.N.Y. Aug. 11, 2011) (“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.”) (citation omitted). The fact that Bowie subsequently exhausted his administrative remedies is irrelevant
as he was required to properly exhaust before he sued. See Burgos v. Craig, 307 Fed. App'x 469, 471 (2d Cir. 2008).
2. Availability of Administrative Remedies
Having determined that Bowie failed to exhaust his administrative remedies, the Court examines whether he should be excused
from the exhaustion requirement because administrative remedies were unavailable.
A prisoner's failure to exhaust administrative remedies may be excused if remedies were unavailable to the inmate. Ross, 136
S.Ct. at 1858 (“An inmate [...] must exhaust available remedies, but need not exhaust unavailable ones.”). There are three
potential circumstances where 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.” Williams v. Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016) (quoting Ross, 136 S.Ct. at 1858-1861).
*6 Courts within this Circuit are split as to whether a delay by CORC constitutes unavailability that would excuse a plaintiff's
failure to exhaust his administrative remedies. See Hayes v. Dahkle, No. 9:16-CV-1368 (TJM/CFH), 2018 WL 7356343, at
*9 (N.D.N.Y. Dec. 11, 2018) (collecting cases); but cf. Henderson v. Annucci, No. 14-CV-445A, 2016 WL 3039687, at *9
(W.D.N.Y. March 14, 2016) (excusing the prisoner's failure to exhaust because, after two years, CORC's decision was still
outstanding); see also High v. Switz, No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3736794, at *5 (N.D.N.Y. July 9, 2018), report
and recommendation adopted sub nom., 2018 WL 3730175 (N.D.N.Y. Aug. 6, 2018) (noting that the Second Circuit has not
decided the precise issue set forth herein) (citing Gizewski v. New York State Dep't of Corr. & Cmty. Supervision, 692 Fed.
App'x 668 (2d Cir. 2017)). In some instances, Courts in this District have found that a delay by CORC does not excuse a
prisoner's failure to exhaust. See Feliz v. Johnson, No. 9:17-CV-1294 (DNH/ATB), 2019 WL 3491232, at *1 (N.D.N.Y. Aug.
1, 2019) (citing, inter alia, Casey v. Brockley, No. 9:13-CV-01271, 2015 WL 8008728, at *6 (N.D.N.Y. Nov. 9, 2015), report-
recommendation and order adopted by, 2015 WL 7864161 (N.D.N.Y. Dec. 3, 2015) (finding five month delay by CORC in
rendering decision on appeal did not excuse the plaintiff from exhaustion requirement)); see also Staples v. Patane, No. 9:17-
CV-0703 (TJM/TWD), 2018 WL 7361009, at *9 (N.D.N.Y. Dec. 7, 2018) (concluding that more than ten month delay was
insufficient for finding unavailability).
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In this case, CORC's records reveal that Bowie's appeal was received on August 29, 2017. Dkt. No. 29-3 at 8. “[P]ursuant to
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(3)(i), ‘[i]f a grievant does not receive a copy of the written notice of receipt
within 45 days of filing an appeal [to CORC], the grievant should contact the IGP supervisor in writing to confirm that the
appeal was filed and transmitted to CORC.’ ” Fox v. Lee, No. 9:15-CV-0390 (TJM/CFH), 2018 WL 8576600, at *7 (N.D.N.Y.
Dec. 18, 2018) (citing N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(3)(i)). The record herein lacks evidence that Bowie
received confirmation or notice of the receipt of his appeal.
In High, the plaintiff filed an appeal with CORC on February 6, 2017. High, 2018 WL 3736794, at *3. “[A]fter not hearing from
CORC, [the] [p]laintiff sent CORC a letter asserting that CORC had exceeded the timeline and that he had therefore exhausted
his administrative remedies, and would be filing a claim in Court.” Id. On September 12, 2017, the plaintiff filed his federal
complaint. Id. In February 2018, CORC issued a decision, one year after the plaintiff filed his appeal to CORC. High, 2018 WL
3736794, at *3. The Court noted that “[t]here is no instruction [in the IGP] on what a grievant is to do if he or she has appealed
to CORC, the final step, and has not received a response.” High, 2018 WL 3736794, at *5. In that case, the Court noted that,
“under the hopefully unique facts of this case,” the failure to exhaust was excused. Id. at *5.
Here, CORC should have responded by September 29, 2017. See 7 NYCRR §§ 701.5(d)(3)(ii), 701.8(i). A decision however,
was not issued until October 17, 2018, more than one year beyond the thirty days required by the IGP. While the Court is
troubled by the excessive delay and lack of explanation for said delay by counsel or Seguin, the facts herein are distinguishable
from High because Bowie has not offered any evidence suggesting that he received written notice that the appeal was filed or
that he attempted to contact CORC or the IGRC at Great Meadow C.F. regarding the status of his appeal before commencing
this action. Indeed, the Complaint is devoid of any reference to the grievance, the IGP, or Bowie's attempts to exhaust. See
generally, Dkt. No. 1. Because the facts of this case are similar to those presented in Staples and Fox, on the record before
the Court, the undersigned concludes that CORC's delay in rendering a decision did not excuse Bowie from the exhaustion
requirement. Staples, 2018 WL 7361009 at *9; see also Hayes, 2018 WL 7356343, at *10 (“[...] there is no indication in the
record that plaintiff wrote to CORC regarding the status of his appeal and CORC further neglected to respond.”); Fox, 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.”); see also Ulmer v. Bedore, No. 9:15-CV-00497 (DNH/TWD), 2018
WL 7291499, at *7 (N.D.N.Y. Nov. 13, 2018) (finding no excuse for failure to fully exhaust without evidence in the record
that Plaintiff contacted the IGRC or CORC inquiring as to the status of his appeal before filing his lawsuit); see also Berkley v.
Ware, No. 9:16-CV-1326 (LEK/CFH), 2018 WL 3736791, at *6 (N.D.N.Y. July 6, 2018) (“Plaintiff has not proffered evidence
that he wrote to the Franklin IGRC or CORC inquiring as to the status of his appeal.”).
*7 Accordingly, it is recommended that Defendants’ motion for summary judgment be granted based on Bowie's failure to
exhaust his claims. Because “[f]ailure to exhaust administrative remedies is often a temporary, curable procedural flaw,” and
“[i]f the time permitted for pursuing administrative remedies has not expired, a prisoner ... can cure the defect by exhausting
[the available remedies] and reinstating his suit.” Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2003) (amended 2004) (quoting Snider
v. Melindez, 199 F.3d 108, 111–12 (2d Cir. 1999)). In this case, the alleged incidents in the underlying action occurred in 2017
and thus, are still within the applicable statute of limitations.
IV. CONCLUSION
WHEREFORE, based on the findings set forth above, it is hereby:
RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No. 29) be GRANTED without prejudice; and
it is further
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RECOMMENDED that the Complaint be DISMISSED without prejudice; and it is further
ORDERED that copies of this Report-Recommendation and Order be served on the parties in accordance with the Local Rules.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 7 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. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV.
P. 6(a), 6(e), 72.
All Citations
Not Reported in Fed. Supp., 2019 WL 7606078
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 The Complaint was properly verified by declaration under 28 U.S.C. § 1746. Compl. at 5; LeBoeuf, Lamb, Greene &
MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65-66 (2d Cir. 1999) (holding that use of the language “under penalty of
perjury” substantially complies with 28 U.S.C. § 1746).
3 Local Rule 7.1(a)(3) states:
Summary Judgment Motions
Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material Facts shall
set forth, in numbered paragraphs, each material fact about which the moving party contends there exists no genuine
issue. Each fact listed shall set forth a specific citation to the record where the fact is established. The record for
purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions
and affidavits. It does not, however, include attorneys’ affidavits.
The opposing party shall file a response to the Statement of Material Facts. The non-movant's response shall mirror
the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in matching
numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises. The
Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing
party does not specifically controvert. The non-movant's response may also set forth any additional material facts
that the non-movant contends are in dispute. Any facts set forth in the Statement of Material Facts shall be deemed
admitted unless specifically controverted by the opposing party.
Local Rule 7.1(a)(3).
4 Defendants annexed exhibits to the motion. Dkt. No. 29-3. Plaintiff does not object or challenge the authenticity of the
documents. Therefore, the Court will consider the exhibits in the context of the within motion. See U.S. v. Painting
known as Hannibal, No. 07-CV-1511, 2010 WL 2102484, at *1, n.2 (S.D.N.Y. May 18, 2010) (citing Daniel v. Unum
Provident Corp., 261 F. App'x 316, 319 (2d Cir. 2008) (“[A] party is not required to authenticate documents on a
summary judgment motion where, as here, authenticity is not challenged by the other party”)). In light of the procedural
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posture of the case, the following recitation is derived from the record now before the Court, with all inferences drawn
and ambiguities resolved in non-moving party's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
5 In the Answer, Defendants pleaded, inter alia, the affirmative defense that Bowie failed to exhaust his administrative
remedies. Dkt. No. 13 at ¶ 15.
6 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided
to Plaintiff.
7 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.
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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White v. Drake, Not Reported in F.Supp.2d (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 4478988
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
John H. WHITE, Plaintiff,
v.
Raymond DRAKE, Correctional Officer, Upstate Correctional Facility, Defendant.
No. 10–CV–1034 (GTS/DRH).
|
Aug. 11, 2011.
Attorneys and Law Firms
John H. White, Malone, NY, pro se.
Hon. Eric T. Schneiderman, Attorney General for the State of New York, Krista A. Rock, Esq., Assistant Attorney General,
of Counsel, Albany, NYk, for Defendant.
REPORT–RECOMMENDATION AND ORDER 1
DAVID R. HOMER, United States Magistrate Judge.
*1 Plaintiff pro se John H. White (“White”), an inmate in the custody of the New York State Department of Correctional
and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983 alleging that defendant Raymond
Drake (“Drake”), a corrections officer employed by DOCCS, violated his constitutional rights under the Eighth Amendment
when Drake subjected him to excessive force. Compl. (Dkt. No. 1). Presently pending is Drake's motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6). Dkt. Nos. 12, 21, 40. White initially opposed the motion, Dkt. Nos. 17, 25, but now appears to agree that
this action should be dismissed without prejudice. Dkt. Nos. 41, 42. For the following reasons, it is recommended that Drake's
motion be granted and that the complaint be dismissed without prejudice.
I. Background
The facts are related in the light most favorable to White as the non-moving party. See Ertman v. United States, 165 F.3d 204,
206 (2d Cir.1999).
On June 27, 2010 while incarcerated at Upstate Correctional Facility, White was notified by a corrections officer that he had a
visitor. Dkt. No. 1–1 at 1. After waiting for approximately thirty minutes without being summoned for the visit, White asked
the other officers why he was not being taken to his visitor. Id. An officer responded that White's visit was cancelled because
his visitor was denied entrance. Id. Drake then approached White's cell door and informed him that his visitor was in possession
of drugs and had been apprehended by the local police. Id.; Compl. ¶ 6. Drake then walked away from White's cell, as White
voiced charges of “official misconduct” while lying on the floor and speaking through the open area of his cell door. Dkt. No.
1–1 at 1. Drake then returned to the cell and “deliberately kicked the [cell] door ... causing injury to [White's] mouth, nose,
[and] right jaw.” Id.; see also Compl. ¶ (6). White's nose began to bleed and he experienced immediate pain in his jaw. Dkt.
No. 1–1 at 1. White then stood up and asked Drake why he would intentionally kick the cell door when he knew that White
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was lying next to it. Dkt. No. 1–1 at 2. Drake responded that he did so because he was aware that White was making a record
of the incident and “could do it.” Id.
That same day, White filed a grievance complaining that he had been (1) treated unfairly because he was black; (2) denied
notification; (3) misled concerning the details of his visitor; and (4) subjected to excessive force. Dkt. No. 1–1 at 2–4. White's
grievance was denied and he appealed administratively. 2 Compl. ¶ 4(b). However, White never received a final determination
from DOCCS after his last appeal. Id. ¶ 4(b)(I). White “wr [ote] to the Commissioner concerning the delay ... no one ha[d]
responded thus far [and White felt that he was] be[ing] denied any responses.” Id. ¶ 4(b)(ii). On August 9, 2010, White filed
the present action. Compl. at ¶ 8. On October 7 and November 3, 12, and 20, 2010, White wrote to the undersigned to apprise
the court that he had still not received a final determination of his grievance. Dkt. Nos. 10, 11, 13, 22. 3
II. Discussion
*2 White contends that his constitutional rights were violated when Drake harassed and subjected him to excessive force.
Drake moves for dismissal because (1) White has failed to exhaust his administrative remedies, (2) there are no merits to White's
constitutional claim, and (3) Drake is entitled to qualified immunity. 4
A. Legal Standard
Rule 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When considering a motion to dismiss, “a
court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-
movant.” Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.1994). However, this “tenet ... is inapplicable to legal conclusions[;
thus, t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft
v. Iqbal, ––– U.S. ––––, ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 555 (2007) (holding that “entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action ... [as] courts are not bound to accept as true a legal conclusion couched as a factual allegation.”)).
Accordingly, to defeat a motion to dismiss, a claim must include “facial plausibility ... that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556
(explaining that the plausibility test “does not impose a probability requirement ... it simply calls for enough fact to raise a
reasonable expectation that discovery will reveal evidence of illegal [conduct].”)); see also Arar v. Ashcroft, 585 F.3d 559, 569
(2d Cir.2009) (holding that, “[o]n a motion to dismiss, courts require enough facts to state a claim to relief that is plausible ....”)
(citations omitted). Determining whether plausibility exists is “a content specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 129 S.Ct. at 1950–51.
When, as here, a party seeks dismissal against a pro se litigant, a court must afford the non-movant special solicitude. Triestman
v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185,
191–92 (2d Cir.2008) (“On occasions too numerous to count, we have reminded district courts that ‘when [a] plaintiff proceeds
pro se, ... a court is obliged to construe his pleadings liberally.’ “ (citations omitted)).
B. Failure to Exhaust
Under 42 U.S.C. § 1997e(a), an inmate must exhaust all administrative remedies prior to bringing any suits challenging prison
conditions, including federal civil rights cases. Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002);
see also Woodford v. Ngo, 548 U.S. 81, 83, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). This exhaustion requirement applies to
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all prison condition claims. Porter, 534 U.S. at 532. “[A]ny deprivation that does not affect the fact or duration of a prisoner's
overall confinement is necessarily a condition of that confinement.” Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir.1999). The
exhaustion requirement also applies even if the administrative grievance process does not provide for all the relief requested
by the inmate. Nussle, 534 U.S. at 524.
*3 While 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) (citing Giano v. Goord, 380 F.3d 670, 677 (2d Cir.2004)).
A plaintiff's failure to exhaust administrative remedies may be excused if: (1) administrative remedies
were not actually available; (2) defendants have forfeited their affirmative defense of non-exhaustion or
are estopped from raising such a defense because of their own actions; or (3) special circumstances exist,
such as a reasonable misinterpretation of [DOCCS] regulations.
Torres v. Carry, 672 F.Supp.2d 338, 344 (S.D.N.Y.2009) (citations omitted).
Exhaustion for an inmate in DOCCS custody is generally achieved through the IGP). See N.Y. Comp.Codes R. & Regs. tit. 7, §
701 .1, et seq.; see also n. 2 supra. 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. Torres, 672 F.Supp.2d at 344; see also
N .Y. Comp.Codes R. & Regs. tit. 7 § 701.5(d)(2)(ii) (“The CORC shall review each appeal, render a decision on the grievance,
and transmit its decision ... within 30 calendar days”).
In this case, the CORC did not render its decision on the final stage of White's appeal until after White had commenced this
action. Thus, exhaustion was completed during the pendency, not prior to the commencement of, this action. The facts are clear
that White complied with the IGP and filed a final appeal to CORC. The facts also demonstrate that, after White commenced
the present action, the final determination was rendered by CORC, thus terminating the administrative process. There are no
allegations that White did not know how the grievance process worked or that it was unavailable to him. Accordingly, the
question presented by this motion is whether White satisfied the exhaustion requirement in these circumstances.
“The Courts of Appeals for the First, Second, Third, Seventh, Tenth, Eleventh, and D[istrict of] C[olumia] ... have held that
§ 1997(e) requires exhaustion before the filing of a complaint and that a prisoner does not comply with this requirement by
exhausting available remedies during the course of litigation.” McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir.2002); see also
Neal v. Goord, 267 F.3d 116, 122 (2d Cir.2001) (“Subsequent exhaustion after suit is filed therefore is insufficient.”) abrogated
in part on other grounds by Porter, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12. This is because the statutory “language clearly
contemplates exhaustion prior to the commencement of the action as an indispensable requirement [and e]xhaustion subsequent
to the filing of the suit will not suffice.” Medina–Claudio v. Rodriguez–Mateo, 292 F.3d 31, 36 (1st Cir.2002) (citations omitted);
see also 42 U.S.C. § 1997(e) (“No action shall be brought with respect to prison conditions under section 1983 ... by a prisoner ...
until such administrative remedies as are available are exhausted.”); Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 534–35
(7th Cir.1999) (explaining that “Congress could have written a statute making exhaustion a precondition to judgment, but it did
not. The actual statute makes exhaustion a precondition to suit.” ).
*4 Where the administrative process has been started, but has yet to conclude, courts have dismissed federal claims without
prejudice and granting leave to reopen when the administrative process has ceased and the result is a denial of the inmate's
grievance. Torres, 672 F.Supp.2d at 345–46; see also Neal, 267 F.3d at 123 (explaining that inmates' claims which are “dismissed
without prejudice, ... may simply [be] re-file[d] ... after fully complying with the exhaustion requirement.”); Chalif v. Spitzer,
No. 05–CV–1355, 2008 WL 1848650, at *13 (“The fact that a grievance is filed, or the process is completed, subsequent
to commencement of suit will not salvage an otherwise premature filing.”) (citations omitted). Therefore, it is clear that the
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White v. Drake, Not Reported in F.Supp.2d (2011)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
case law requires White's complaint to be dismissed without prejudice to filing a new action for a failure to fully exhaust his
administrative remedies prior to filing the instant complaint.
Thus, White will be required to re-commence this action and re-serve Drake even though the exhaustion requirement has now
been satisfied and where the delay in completing the administrative process was apparently caused solely by DOCCS delay
at the final appeal stage. This inefficiency imposes additional burdens and costs not only on White and Drake but also on the
Court. This factor has already been contemplated, and rejected, by various courts, including the Second Circuit.
While it is true that requiring dismissal may, in some circumstances, occasion the expenditure of
additional resources on the part of the parties and the court, it seems apparent that Congress has made a
policy judgment that this concern is outweighed by the advantages of requiring exhaustion prior to the
filing of suit ... [Therefore r]equiring dismissal without prejudice when there is no presuit exhaustion
provides a strong incentive that will further these Congressional objectives; permitting exhaustion
pendente lite will inevitably undermine attainment of them.
McKinney, 311 F.3d at 1200–1201; Neal, 267 F.3d at 123 (acknowledging that in an individual case, requiring dismissal for
failure to exhaust may be judicially inefficient but ultimately concluding that exhaustion must be mandatory because a policy of
generally “allowing prisoner suits to proceed, so long as the inmate eventually fulfils the exhaustion requirement, undermines
Congress' directive to pursue administrative remedies prior to filing a complaint in federal court.”). Thus, arguments of judicial
inefficiency or additional expense do not serve as compelling reasons for denying defendant's present motion.
Accordingly, Drake's motion to dismiss for failure to exhaust should be granted.
III. Conclusion
For the reasons stated above, it is hereby RECOMMENDED that Drake's motion to dismiss (Dkt. No. 12) be GRANTED and
the complaint DISMISSED WITHOUT PREJUDICE.
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 F.Supp.2d, 2011 WL 4478988
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).
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White v. Drake, Not Reported in F.Supp.2d (2011)
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2 “The IGP [Inmate Grievance Program] is a three-step process that requires an inmate to: (1) file a grievance with the
IGRC [Inmate Grievance Resolution Committee]; (2) appeal to the superintendent within four working days of receiving
the IGRC's written response, and (3) appeal to the CORC [Central Office Review Committee] ... within four working
days of receipt of the superintendent's written response.” Abney v. McGinnis, 380 F.3d 663, 668 (2d Cir.2004) (internal
citations omitted).
3 On December 1, 2010, Drake filed a supplemental memorandum of law in this action seeking dismissal of White's claim
for White's failure to exhaust his administrative remedies. Dkt. No. 21. On July 25, 2011, the present action was stayed
to allow DOCCS or CORC to file a decision regarding White's pending administrative appeal. Dkt. No. 39. On August
1, 2011, Drake responded, providing the Court with a copy of CORC's denial of White's grievance, dated November
24, 2010. Dkt. No. 40.
4 It is unnecessary to address the second and third grounds of Drake's motion in light of White's acknowledged failure to
exhaust administrative remedies and those grounds will not be further addressed herein.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 5445519
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Edmund BOWIE, Plaintiff,
v.
Sergeant Gary WOODRUFF and Correctional Officer Kyle Brooks, Defendants.
9:18-cv-00266 (BKS/ML)
|
Signed 10/23/2019
Attorneys and Law Firms
Plaintiff pro se: Edmund Bowie, 14-B-0838, Auburn Correctional Facility, P.O. Box 618, Auburn, New York 13021.
For Defendants: Letitia James, Attorney General for the State of New York, Richard C. White, The Capitol, Albany, New York
12224.
MEMORANDUM-DECISION AND ORDER
Hon. Brenda K. Sannes, United States District Judge:
I. INTRODUCTION
*1 Plaintiff Edmund Bowie, a New York State inmate proceeding pro se, brought this action under 42 U.S.C. § 1983, alleging
that Defendants subjected him to excessive force in violation of the Eighth Amendment. (Dkt. No. 1, at 2–3). On April 26,
2019, Defendants moved for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies.
(Dkt. No. 29). Plaintiff did not respond to the motion, although he requested and was granted an extension of time to do so.
(Dkt. No. 33). This matter was assigned to United States Magistrate Judge Miroslav Lovric who, on September 20, 2019,
issued a Report-Recommendation and Order recommending that Defendants' motion for summary judgment be granted and
that Plaintiff's complaint be dismissed without prejudice. (Dkt. No. 35). Magistrate Judge Lovric advised the parties that under
28 U.S.C. § 636(b)(1), they had fourteen days within which to file written objections to the report, and that the failure to object
to the report within fourteen days would preclude appellate review. (Dkt. No. 35, at 15–16). No objections were filed.
For the following reasons, Magistrate Judge Lovric's Report-Recommendation is adopted.
II. STANDARD OF REVIEW
As no objections to the Report-Recommendation have been filed and the time for filing objections has expired, the Court reviews
the Report-Recommendation for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 228–29 (N.D.N.Y. 2012); Fed. R. Civ.
P. 72(b) advisory committee's note to 1983 amendment.
III. DISCUSSION
Magistrate Judge Lovric recommended granting Defendants' motion for summary judgment because Plaintiff commenced this
action before receiving a decision from the Central Office Review Committee (“CORC”) on his appeal. Plaintiff sent his appeal
to the CORC on August 21, 2017. (Dkt. No. 29-3, at 7). The CORC received the appeal on August 29, 2017. (Id. at 8). The
CORC did not, however, decide the appeal within the applicable thirty-day time period. See 7 N.Y.C.R.R. § 701.5(d)(3)(ii).
Plaintiff commenced this action on March 1, 2018, almost six months after the CORC had received his appeal. (Dkt. No. 1).
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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
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The CORC denied Plaintiff's appeal on October 17, 2018, almost 14 months after the CORC had received it. (Dkt. No. 29-3,
at 9). Magistrate Judge Lovric determined that the CORC's delay in rendering a decision did not excuse Plaintiff from the
exhaustion requirement. (Dkt. No. 35, at 14) (citing Staples v. Patane, No. 17-cv-0703, 2018 WL 7361009, 2018 U.S. Dist.
LEXIS 207971 (N.D.N.Y. Dec. 7, 2018), report and recommendation adopted, No. 17-cv-0703, 2019 WL 757937, 2019 U.S.
Dist. LEXIS 26563 (N.D.N.Y. Feb. 20, 2019); Fox v. Lee, No. 15-cv-0390, 2018 WL 8576600, 2018 U.S. Dist. LEXIS 213705
(N.D.N.Y. Dec. 18, 2018), report and recommendation adopted, No. 15-cv-0390, 2019 WL 1323845, 2019 U.S. Dist. LEXIS
48967 (N.D.N.Y. Mar. 25, 2019)).
There is a split of authority in this Circuit as to whether, under the Supreme Court's decision in Ross v. Blake, ––– U.S. ––––,
136 S. Ct. 1850, 195 L.Ed.2d 117 (2016) and the Second Circuit's decision Williams v. Priatano, 829 F.3d 118 (2d Cir. 2016),
this kind of delay by the CORC in issuing a timely decision to a prisoner's grievance renders exhaustion unavailable. Compare,
e.g., Sherwood v. Senecal, No. 17-cv-00899, 2019 WL 4564881, at *2–4, 2019 U.S. Dist. LEXIS 160295, at *4–8 (N.D.N.Y.
Sept. 20, 2019); Mayandeunas v. Bigelow, No. 18-cv-1161, 2019 WL 3955484, at *4, 2019 U.S. Dist. LEXIS 142452, at *10
(N.D.N.Y. Aug. 22, 2019) (Suddaby, C.J.); Lovell v. McAuliffe, No. 18-cv-0685, 2019 WL 4143361, 2019 U.S. Dist. LEXIS
74402 (N.D.N.Y. May 1, 2019), report and recommendation adopted, No. 18-cv-0685, 2019 WL 4142593, 2019 U.S. Dist.
LEXIS 147890 (N.D.N.Y. Aug. 30, 2019); Bell v. Napoli, No. 17-cv-850, 2018 WL 6506072, 2018 U.S. Dist. LEXIS 208503
(N.D.N.Y. Dec. 11, 2018); Yates v. Smith, No. 17-cv-1227, 2018 WL 4635715, 2018 U.S. Dist. LEXIS 116276 (N.D.N.Y. July
11, 2018), report and recommendation adopted, No. 17-cv-1227, 2018 WL 3727357, 2018 U.S. Dist. LEXIS 131450 (N.D.N.Y.
Aug. 6, 2018); High v. Switz, No. 17-cv-1067, 2018 WL 3736794, 2018 U.S. Dist. LEXIS 114403 (N.D.N.Y. July 9, 2018),
report and recommendation adopted sub nom. High v. PA Switz, No. 17-cv-1067, 2018 WL 3730175, 2018 U.S. Dist. LEXIS
131446 (N.D.N.Y. Aug. 6, 2018) with Staples, 2018 WL 7361009, 2018 U.S. Dist. LEXIS 207971; Berkley v. Ware, No. 16-
cv-1326, 2018 WL 3736791, 2018 U.S. Dist. LEXIS 113521 (N.D.N.Y. July 6, 2018), report and recommendation adopted, No.
16-cv-1326, 2018 WL 3730173, 2018 U.S. Dist. LEXIS 131445 (N.D.N.Y. Aug. 6, 2018). Although this Court has concluded
that this kind of delay by the CORC in responding to a prisoner's appeal renders administrative remedies unavailable under
Ross, considering the intra-Circuit split on this issue, the Court cannot say that the magistrate judge's determination here rises to
the level of clear error. See Warr v. Liberatore, No. 13-cv-6508, 2018 WL 3237733, at *5, 2018 U.S. Dist. LEXIS 111126, *13–
14 (W.D.N.Y. July 3, 2018) (explaining, in the context of a motion for reconsideration, that “considering the split in authority ...
defendants have not demonstrated that [district court's decision was] clearly erroneous”).
*2 Finally, the Court notes that, because the CORC has now rendered a decision on Plaintiff's grievance, (Dkt No. 29-3, at 9),
his administrative remedies are now exhausted. Plaintiff is therefore free to reinstitute his lawsuit, which is dismissed without
prejudice. (Dkt. No. 35, at 15). See Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) (noting that where a plaintiff fails to exhaust
administrative remedies, and the defect can be cured, dismissal without prejudice is proper) 1
IV. CONCLUSION
For these reasons, it is
ORDERED that the Report-Recommendation (Dkt. No. 35) is ADOPTED; and it is further
ORDERED that Defendants' motion for summary judgment (Dkt. No. 29) is GRANTED; and it is further
ORDERED that the complaint is DISMISSED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk is directed to close this case; and it is further
ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules.
IT IS SO ORDERED.
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Bowie v. Woodruff, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
All Citations
Not Reported in Fed. Supp., 2019 WL 5445519
Footnotes
1 The Court notes that Plaintiff has ample time to do so because the statute of limitations on Plaintiff's claim tolled for
the duration of the mandatory administrative exhaustion process—that is, his limitations period tolled from the time
Plaintiff initiated his grievance process on June 23, 2017 until the CORC issued its final decision on October 17, 2018.
(Dkt. No 29-3, at 3, 9). Gonzalez v. Hasty, 651 F.3d 318, 323–24 (2d Cir. 2011) (“[W]e join our sister circuits and hold
‘that the applicable statute of limitations must be tolled while a prisoner completes the mandatory exhaustion process.’
” (quoting Brown v. Valoff, 422 F.3d 926, 943 (9th Cir. 2005))).
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
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