Moorer v. Matthie et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DeVONTE MOORER,
Plaintiff,
9:25-CV-679
v. 	(AJB/DJS)
TROY MATTHIE, Correction Officer, Upstate
Correctional Facility, et al.,
Defendants.
APPEARANCES: 	OF COUNSEL:
DeVONTE MOORER
Plaintiff, pro se
11-B-2591
Green Haven Correctional Facility
P.O. Box 4000
Stormville, New York 12582
HON. LETITIA JAMES 	OLIVIA R. COX, ESQ.
Attorney General for the State of New York 	Assistant Attorney General
Attorney for Defendants
The Capitol
Albany, New York 12224
DANIEL J. STEWART
United States Magistrate Judge
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REPORT-RECOMMENDATION and ORDER1
This case, commenced pursuant to 42 U.S.C. § 1983, concerns allegations of
excessive force and conspiracy. 	See generally Dkt. No. 1, Compl. 	Plaintiff, an
individual incarcerated in the custody of the New York State Department of Corrections
and Community Supervision (“DOCCS”), alleges that the Defendants violated his
constitutional rights while he was held at Upstate Correctional Facility (“Upstate”). Id.;
Dkt. No. 6 at pp. 5-9. Defendants have now moved, prior to answering, for Summary
Judgment, pursuant to Federal Rule of Civil Procedure 56(a), seeking to dismiss the
Complaint based on Plaintiff’s failure to properly exhaust his administrative remedies.
See Dkt. No. 27-4, Defs.’ Mem. of Law at pp. 5-8. They also move pursuant to Federal
Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff’s conspiracy claim. 	Id. at pp. 9-
10. Plaintiff opposed the Motion, Dkt. Nos. 32, Pl.’s Opp.2 & 33, and Defendants have
replied. Dkt. No. 34, Defs.’ Reply.3
For 	the 	reasons 	that 	follow, 	the 	Court 	recommends 	that 	the 	Motion 	be
GRANTED in part and DENIED in part.
1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
2 Citations to Plaintiff’s Opposition are to page numbers provided by the Court’s CM/ECF system.
3 Plaintiff has also filed a surreply. Dkt. No. 36. Though this filing was not permitted under the rules, the Court
has considered it out of deference to Plaintiff’s pro se status.
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I. BACKGROUND
The allegations in the Complaint concern the alleged use of excessive force on
August 2, 2024. See generally Compl. Plaintiff’s allegations recount a series of events
concerning food missing from the storehouse at Upstate. Id. at pp. 5-7. Plaintiff claims
that he reported the missing food and that staff at Upstate immediately determined that
inmates would be blamed for it being missing. Id. at p. 5. Several days after reporting
the issue, Plaintiff alleges that he was ordered out of his cell by correctional staff and
pat frisked. 	Id. at p. 6. 	He was then questioned about the missing food. 	Id. 	Several
days later, the Complaint alleges that Plaintiff reported to a facility Sergeant concerns
he and others had for his safety given that inmates were being blamed for the food being
missing. 	Id. at pp. 6-7. 	Then on August 2, 2024, while plaintiff was working in the
storehouse, “an altercation erupted” between Defendant Matthie and several other
inmates. Id. at p. 7. When other correctional officers arrived on the scene the Complaint
alleges that they “discussed whom they were going to beat first.” Id. at pp. 7-8. Plaintiff
alleges that several other inmates and eventually him were assaulted by Defendants. Id.
at pp. 8-11.
DOCCS has no record of Plaintiff filing a grievance regarding this incident. Dkt.
No. 27-1, Seguin Decl., ¶¶ 12-13; Dkt. No. 27-2, Richards Decl. ¶¶ 15-16. 	Plaintiff
contends that he did file a grievance regarding the matter and that he attempted to appeal
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the matter when he was not advised regarding the consideration of his grievance. Pl.’s
Opp. at pp. 9-10.
II. SUMMARY JUDGMENT MOTION
Defendants seek summary judgment dismissing the case based on Plaintiff’s
purported failure to exhaust his administrative remedies. Defs.’ Mem. of Law at pp. 5-
8. 	Because questions of fact exist regarding whether Plaintiff did so, the Court
recommends that the Motion be denied.
A. Legal Standard
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is
appropriate only where “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” The moving party bears the burden
to 	demonstrate 	through 	“pleadings, 	depositions, 	answers 	to 	interrogatories, 	and
admissions on file, together with [ ] affidavits, if any,” that there is no genuine issue of
material fact. 	F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific
facts showing that there is a genuine issue for trial, and cannot rest merely on allegations
or denials of the facts submitted by the movant. F ED . R. CIV . P. 56(c); see also Scott v.
Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are
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ordinarily not sufficient to defeat a motion for summary judgment when the moving
party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d
522, 525-26 (2d Cir. 1994). 	To that end, sworn statements are “more than mere
conclusory allegations subject to disregard . . . they are specific and detailed allegations
of fact, made under penalty of perjury, and should be treated as evidence in deciding a
summary judgment motion” and the credibility of such statements is better left to a trier
of fact. Scott v. Coughlin, 344 F.3d at 289 (citing cases).
When considering a motion for summary judgment, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the non-movant. 	Nora
Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he
trial court’s task at the summary judgment motion stage of the litigation is carefully
limited to discerning whether there are any genuine issues of material fact to be tried,
not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does
not extend to issue-resolution.” 	Gallo v. Prudential Res. Servs., Ltd. P’ship, 22 F.3d
1219, 1224 (2d Cir. 1994). Furthermore, where a party is proceeding pro se, the court
must “read [his or her] supporting papers liberally, and . . . interpret them to raise the
strongest arguments that they suggest.” 	Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994). 	Nonetheless, summary judgment is appropriate “[w]here the record taken as a
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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).
B. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, that
“[n]o action shall be brought with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). 	The Supreme Court has held that “the PLRA’s exhaustion
requirement applies to all inmate suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege excessive force or some
other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation omitted). Exhaustion
in prisoner cases covered by § 1997e(a) is mandatory. Id. at 524; see also Ross v. Blake,
578 U.S. 632, 638 (2016) (stating that the mandatory language of § 1997e(a) forecloses
judicial discretion to craft exceptions to the requirement). 	Furthermore, § 1997e(a)
requires “proper exhaustion,” which means using all steps of the administrative process
and complying with “deadlines and other critical procedural rules.” Woodford v. Ngo,
548 U.S. 81, 93 (2006). 	The defendant bears the burden of proving that the
administrative remedies available to the plaintiff were not exhausted prior to the
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initiation of a civil action. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec.
28, 1999).4
In New York, the administrative remedies consist of a three-step Incarcerated
Grievance Program. 	First, a grievance is submitted to the Incarcerated Grievance
Resolution Committee (“IGRC”), a committee comprised of both inmates and facility
employees. N.Y. COMP . CODES R. & REGS . tit. 7, § 701.5(b). An inmate must submit a
grievance “within 21 calendar days of an alleged occurrence.” Id. at § 701.5(a)(1). An
inmate may request an extension of the time limit within forty-five days of the date of
the alleged occurrence. Id. at § 701.6(g). The IGRC reviews and investigates the formal
complaint and then issues a written determination. 	Id. at § 701.5(b). 	Second, upon
appeal of the IGRC decision, the superintendent of the facility reviews the IGRC’s
determination and issues a decision. 	Id. at § 701.5(c). 	Finally, upon appeal of the
superintendent’s decision, the Central Office Review Committee (“CORC”) makes the
final administrative determination. Id. at § 701.5(d). Only upon exhaustion of all three
levels of review may a prisoner seek relief in federal court. Bridgeforth v. Bartlett, 686
F. Supp. 2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia, Porter v. Nussle, 534 U.S. at
524); see also Neal v. Goord, 267 F.3d 116, 121 (2d Cir. 2001), overruled on other
grounds by Porter v. Nussle, 534 U.S. 516.
4 Copies of unreported cases from Westlaw are attached to this opinion for Plaintiff’s reference.
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An expedited procedure exists for grievances regarding alleged harassment; this
procedure also requires that the grievant receive a response from CORC in order to
exhaust. 7 N.Y.C.R.R. § 701.8. Pursuant to this expedited procedure, the inmate may
first report the incident to the employee’s immediate supervisor. Id. at § 701.8(a). The
inmate’s allegations are given a grievance number and the Superintendent (or his
designee) must promptly decide whether the grievance, if true, would represent a bona
fide case of harassment. Id. at §§ 701.8(b) & (c). If it is determined that the grievance
is a bona fide harassment issue, the Superintendent must initiate an investigation or
request an investigation be undertaken by the Inspector General’s Office or the New
York State Police. Id. at § 701.8(d). The Superintendent is to render a decision on the
grievance within 25 days of receipt unless an extension is granted. Id. at § 701.8(f). If
the Superintendent fails to respond within 25 days, the grievant may appeal the
grievance to CORC “by filing a notice of decision to appeal (form #2133) with the
inmate 	grievance 	clerk.” 	Id. 	at 	§ 	701.8(g). 	The 	grievant 	may 	appeal 	the
Superintendent’s response to CORC by filing a notice of decision to appeal within seven
days of receipt of the Superintendent’s response. Id. at §§ 701.8(h). “Unless otherwise
stipulated . . . all procedures, rights, and duties pertaining to the processing of any other
grievance as set forth in section 701.5 of this Part shall be followed.” Id. at § 701.8(i).
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The record establishes questions of fact that render summary judgment at this
stage of the proceeding inappropriate. 	The supervisor of the Incarcerated Grievance
Program at Upstate has offered a sworn declaration indicating that a search of records
shows no grievance filed regarding the August 2, 2024 incident. 	Richards Decl. at ¶¶
15-16 & Ex. B. Similarly, a sworn declaration is offered showing no appeals to CORC
regarding any grievance concerning events on that date. Seguin Decl. at ¶¶ 12-13 & Ex.
A. 	In opposing the Motion, however, Plaintiff contends that he did file a grievance
regarding the events at issue in this case. Pl.’s Opp at p. 7. Specifically, he claims to
have filed a grievance “regarding the excessive force and conspiracy and failure to
protect claims in Plaintiff’s Complaint” on or about August 7, 2024. 	Id. Plaintiff
contends video footage may exist of him turning a grievance over to correctional staff.
Dkt. No. 36 at p. 5.
Though Plaintiff’s Opposition indicates that a copy of the grievance is included,
it does not appear that the referenced exhibit is a part of Plaintiff’s papers. Significantly,
however, Plaintiff does attach what he contends are copies of two letters relating to the
grievance. 	One, dated September 1, 2024, references a grievance filed on or about
August 6, noting that he had not received a response and, therefore, sought to appeal
pursuant to DOCCS regulations regarding unaddressed grievances. 	Id. at p. 27. 	A
second letter purports to appeal that same grievance to CORC in light of the alleged
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continued failure to address the grievance. 	Id. at p. 29. 	Each of these letters bears a
return address of Greene Correctional Facility, where Plaintiff was housed on the dates
each letter appears to have been written. 	See Richards Decl. at Ex. A. 	DOCCS
regulations permit an individual who has filed a grievance but received no response to
pursue an appeal. 7 N.Y.C.R.R. § 701.6(g)(2); see also Smith v. Kelly, 985 F. Supp. 2d
275, 281 (N.D.N.Y. 2013) (“[A]ny failure by the IGRC or the superintendent to timely
respond to a grievance . . . can - and must - be appealed to the next level . . . to complete
the grievance process.”).
Courts have differed on what is required to bring an inmate’s claim that he filed
a grievance above the purely conclusory threshold to withstand summary judgment.
Compare Sankara v. Montgomery, 2018 WL 4610686, *8 (N.D.N.Y. June 25, 2018)
(plaintiff’s conclusory claim insufficient when there is no evidence in the record
demonstrating plaintiff’s efforts to exhaust) with Croney v. Medbury, 2024 WL
5294279, at *4 (N.D.N.Y. Nov. 12, 2024), report and recommendation adopted sub
nom. Croney v. Medburry, 2024 WL 4986160 (N.D.N.Y. Dec. 5, 2024) (plaintiff’s
allegations regarding attempts to file grievances established question of fact regarding
exhaustion). 	The documentary evidence presented in opposition here, particularly in
light of the fact that discovery has yet to take place, is sufficient to raise a factual
question about whether Plaintiff filed a grievance, whether it was properly processed, or
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perhaps whether there was some failure on the part of DOCCS staff to do so which could
excuse Plaintiff’s obligation to exhaust. See Ross v. Blake, 578 U.S. at 642-44. This is
particularly true here given that Plaintiff was transferred out of Upstate to Greene
Correctional Facility within approximately twenty days of the incident. 	See Richards
Decl. at Ex. A. The Second Circuit has recognized that DOCCS regulations “plainly do
not provide guidance on how a transferred inmate can appeal his grievance with the
original facility without having received a response.” 	Williams v. Correction Officer
Priatno, 829 F.3d 118, 126 (2d Cir. 2016). 	Plaintiff’s submissions at least suggest he
attempted to appeal, though DOCCS does not appear to have recognized his letters as
such. Viewed in the light most favorable to the nonmovant on this Motion, Plaintiff has
raised a factual question as to the processing and/or the availability of the grievance
process to him under the particular factual circumstances presented. See Woodward v.
Lytle, 2018 WL 4643036, at *5 (N.D.N.Y. Sept. 27, 2018); Juarbe v. Carnegie, 2016
WL 8732798, at *7 (N.D.N.Y. Oct. 7, 2016), report and recommendation adopted, 2016
WL 6901277 (N.D.N.Y. Nov. 23, 2016).
While the Court has the ability to order an exhaustion hearing, see Messa v.
Goord, 652 F.3d 305, 309 (2d Cir. 2011), doing so here without the benefit of discovery
would not be the most efficient manner in which to resolve the factual disputes presented
here. “Only in the rarest of cases may summary judgment be granted against a plaintiff
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who has not been afforded the opportunity to conduct discovery.” 	Hellstrom v. U.S.
Dep’t of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000); see also Roebuck v. Hudson
Valley Farms, Inc., 208 F.R.D. 34, 36 (N.D.N.Y. 2002) (finding summary judgment
premature where plaintiff had not yet been afforded opportunity to conduct relevant
discovery). Rather, the Court recommends that the Motion for Summary Judgment be
denied as premature.
III. MOTION TO DISMISS
Defendants also seek dismissal of Plaintiff’s conspiracy claim under Rule 12.
Defs.’ Mem. of Law at pp. 9-10. They seek dismissal on two grounds: 1) the claim is
barred 	by 	the 	intracorporate 	conspiracy 	doctrine, 	and 	2) 	Plaintiff 	has 	failed 	to
sufficiently plead the claim.
A. Legal Standard
On a motion to dismiss, the allegations of the complaint must be accepted as true.
See Cruz v. Beto, 405 U.S. 319, 322 (1972). 	The trial court’s function “is merely to
assess the legal feasibility of the complaint, not to assay the weight of the evidence
which might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d
Cir. 1980). “The issue is not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims.” 	Scheuer v. Rhodes, 416
U.S. 232, 236 (1974).
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The Court is bound to give the plaintiff the benefit of every reasonable inference
to be drawn from the “well-pleaded” allegations of the complaint. 	See Retail Clerks
Int’l Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 (1963).
Nevertheless, “the tenet that a court must accept as true all of the allegations contained
in a complaint is inapplicable to legal conclusions.” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). 	Therefore, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” 	Id. (citation omitted). 	A
motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff’s
complaint includes “enough facts to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at
697.
“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. This plausibility standard “is
not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. In this respect, to survive dismissal, a plaintiff
“must provide the grounds upon which his claim rests through factual allegations
sufficient ‘to raise a right to relief above the speculative level.’” ATSI Commc’ns, Inc.
v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly,
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440 U.S. at 555). Thus, in spite of the deference the court is bound to give to plaintiff’s
allegations, it is not proper for the court to assume that “the [plaintiff] can prove facts
[which he or she] has not alleged or that the defendants have violated the . . . laws in
ways that have not been alleged.” 	Assoc. Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether
a plaintiff has “nudged [his] claims . . . across the line from conceivable to plausible,”
entails a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Ashcroft v. Iqbal, 556 U.S. at 679-80.
Where, as here, the complaint was filed pro se, it must be construed liberally with
“special solicitude” and interpreted to raise the strongest claims that it suggests. Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011). Nonetheless, a pro se complaint must state
a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009).
B. Merits
The intracorporate conspiracy doctrine bars conspiracy claims against
employees of entities such as DOCCS when those employees are alleged
to have conspired solely with each other unless, pursuant to the doctrine’s
scope of employment exception, the employees were pursuing personal
interests wholly separate and apart from the entity by whom they were
employed.
Miller v. Annucci, 2019 WL 11276705, at *6 (N.D.N.Y. Dec. 16, 2019) (quoting
Richard v. Fisher, 38 F. Supp. 3d 340, 353 (W.D.N.Y. 2014)) (internal alterations and
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quotations omitted). 	The doctrine is frequently the basis for dismissal of conspiracy
claims involving only DOCCS employees. Henderson v. Popp, 2025 WL 942801, at *6
(N.D.N.Y. Mar. 28, 2025), aff’d as modified, 2025 WL 1427876 (N.D.N.Y. May 19,
2025) (citing cases); see also Richard v. Fischer, 38 F. Supp. 3d at 353.5 The Complaint
alleges that each Defendant accused of conspiring to violate Plaintiff’s rights was
employed by DOCCS. 	Compl. at pp. 3-4. 	“Therefore, the Court finds that the intra-
corporate conspiracy doctrine applies to the facts alleged in this action.” Vega v. Artus,
610 F. Supp. 2d 185, 206 (N.D.N.Y. 2009). 	While “there is an exception to the
intracorporate conspiracy doctrine ‘when individuals pursue personal interests wholly
separate and apart from the entity . . . Plaintiff does not allege facts plausibly suggesting
that each Defendant possessed an independent personal purpose.’” Richard v. Fischer,
38 F. Supp. 3d at 353 (quoting Vega v. Artus, 610 F.Supp.2d at 205-06). 	The Court,
therefore, recommends dismissal under this doctrine.
Dismissal is also appropriate on the ground that Plaintiff has failed to adequately
plead a conspiracy.
5 The Second Circuit has expressly applied the doctrine to section 1985 conspiracies, Murphy v. City of Stamford,
634 F. App’x 804, 805 (2d Cir. 2015); Herrmann v. Moore, 576 F.2d 453, 459 (2d Cir. 1978), and “while the
Second Circuit has not yet considered whether the intracorporate conspiracy doctrine applies to section 1983 cases,
district courts within the Second Circuit have applied the doctrine in section 1983 cases and, in particular, to
section 1983 cases filed by prisoners.” Whipper v. Vereen, 2026 WL 161326, at *7 (D. Conn. Jan. 21, 2026)
(citing cases); see also Salley v. Capra, 2025 WL 950991, at *9 (S.D.N.Y. Mar. 28, 2025).
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To survive a motion to dismiss, a conspiracy claim under 42 U.S.C. § 1983
must allege facts plausibly suggesting that (1) an agreement existed
between 	two 	or 	more 	state 	actors 	to 	act 	in 	concert 	to 	inflict 	an
unconstitutional injury on plaintiff, and (2) an overt act was committed in
furtherance of that goal.
Vega v. Artus, 610 F. Supp. 2d at 202 (citing Ciambriello v. County of Nassau, 292 F.3d
307, 324-25 (2d Cir. 2002)). 	Wholly conclusory allegations of a conspiracy are
insufficient as a matter of law. Dwares v. City of New York, 985 F.2d 94, 99-100 (2nd
Cir. 1993) (citing cases).
Defendants submit that Plaintiff’s allegations do not establish the elements of a
conspiracy claim. Defs.’ Mem. of Law at p. 10. In response Plaintiff contends that he
has sufficiently alleged a claim based on meetings purportedly held before and during
the incident with Defendants. 	Pl.’s Opp. at pp. 22-24. 	His allegations in that regard,
however, are exactly the sort of conclusory claims that courts have found insufficient to
survive dismissal. 	He alleges, for example, that various conversations between
correctional officials amply plead a conspiracy by showing that Defendants were
“set[ting] the stage” and “falling into lockstep with [the] arrangement” to assault
Plaintiff. Id. at p. 22. This argument, however, ignores that these allegations themselves
are entirely conclusory. 	They largely omit any specific factual pleading about who,
other than Defendant Ramie, actually participated in these conversations or what was
said during them. Id.; see also Compl. at pp. 8-9. There is no allegation, for example,
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of any conversation about assaulting Plaintiff. 	Plaintiff’s assertions are nothing more
than pure speculation and, even given the difficulties proving a conspiracy can entail,
see Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999), are insufficient to state a
claim. 	Brown v. Johnson, 2016 WL 11950150, at *3 (W.D.N.Y. Dec. 9, 2016)
(dismissal appropriate where “[e]ach of these allegations is set forth in conclusory form
and limited to Plaintiff’s professed belief that the various Defendants took part in the
‘conspiracy’ in the manner alleged.”). 	A conspiracy requires that plaintiff “provide
some factual basis supporting a meeting of the minds.” Webb v. Goord, 340 F.3d 105,
110–11 (2d Cir. 2003). His allegations have not done so here and the Motion to Dismiss
this claim should be granted.
IV. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED, that the Motion for Summary Judgment based on Plaintiff’s
failure to exhaust administrative remedies be DENIED; and it is further
RECOMMENDED, that the Motion to Dismiss Plaintiff’s conspiracy claim be
GRANTED; and it is
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
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Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14)6 days within
which to file written objections to the foregoing report. Such objections shall be filed
with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. 	Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human
Servs., 892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72
& 6(a).
Date: 	April 9, 2026
Albany, New York
6 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
FED. R. C IV. P. 6(a)(1)(C).
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