9:23-cv-00697•Cisse v. Medbury et al
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ ALI CISSE, Plaintiff, v. 9:23-CV-0697 (MAD/ML) AMBER J. BLISS, Corr. Officer, Marcy Corr. Facility; and R. PFLUEGER, Corr. Officer, Auburn Corr. Facility, Defendants. ____________________________________________ APPEARANCES: OF COUNSEL: ALI CISSE Pro Se Plaintiff 741 Hunts Point Avenue, #5G Bronx, New York 10474 LETITIA A. JAMES CHI-HSIN ENGELHART, ESQ. Attorney General for the State of New York MATTHEW GALLAGHER, ESQ. Counsel for Defendants Assistant Attorneys General The Capitol Albany, New York 12224 MIROSLAV LOVRIC, United States Magistrate Judge REPORT and RECOMMENDATION Currently before the Court, in this civil rights action filed by Ali Cisse (“Plaintiff”) against defendants Amber J. Bliss and R. Pflueger (collectively “Defendants”), is Defendants’ partial motion for summary judgment pursuant to Fed. R. Civ. P. 56 and motion for judgment on the pleadings pursuant to Fed. R. Civ. P 12(c). (Dkt. No. 67.) For the reasons set forth below, I recommend that Defendants’ partial motion for summary judgment be granted and Defendants’ Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 1 of 300
2 motion for judgment on the pleadings be granted to the extent that it seeks dismissal of Plaintiff’s claim against Defendant Pflueger. I. RELEVANT BACKGROUND A. Plaintiff’s Claims At this procedural posture, Plaintiff asserts the following claims: (1) a claim of excessive force against Defendant Pflueger pursuant to the Eighth Amendment and 42 U.S.C. § 1983; (2) two claims that his free exercise rights were violated by Defendant Bliss based on two pat-frisks pursuant to the First Amendment and 42 U.S.C. § 1983. (See generally Dkt. Nos. 1, 4, 41, 69.) B. Procedural History Plaintiff commenced this action on or about June 12, 2023. (Dkt. No. 1.) On July 24, 2023, Senior United States District Judge Gary L. Sharpe granted Plaintiff’s in forma pauperis application and accepted Plaintiff’s Complaint for filing to the extent that it asserted the following four claims: (1) Eighth Amendment excessive force claim against Defendant Pflueger; (2) First Amendment free exercise claims against Defendant Bliss related to pat-frisks; (3) First Amendment retaliation claim against Mr. Miller and Defendant Bliss related to Plaintiff’s Ramadan breakfast; and (4) First Amendment retaliation claim against Mr. Miller related to a negative informational. (Dkt. No. 4.) On April 16, 2024, Defendant Bliss and Mr. Miller filed a partial motion for summary judgment and partial motion to dismiss. (Dkt. No. 27.) On January 15, 2025, United States District Judge Mae A. D’Agostino (1) dismissed Plaintiff’s retaliation claim against Defendants Miller and Bliss related to Plaintiff’s Ramadan breakfast, and (2) ordered that an exhaustion hearing be held related to Plaintiff’s retaliation claim against Mr. Miller pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 2 of 300
3 On May 13, 2025, an exhaustion hearing was scheduled for July 8, 2025. (Minute Entry 5/13/2025; Dkt. No. 46.) On May 30, 2025, Defendants filed a letter motion requesting that Defendant Bliss be permitted to supplement and join Defendant Miller’s motion for summary judgment on exhaustion grounds. (Dkt. No. 47; see also Dkt. No. 49.) More specifically, Defendants asserted that “[i]n preparation of the hearing and reviewing the file, it came to [defense counsel]’s attention that there is also an issue of exhaustion with respect to the First Amendment free exercise claim against Defendant Bliss.” (Dkt. No. 47 at 1; Dkt. No. 49 at 1.) Hence, Defendants requested leave to file supplemental briefing “with respect to exhaustion of Plaintiff’s First Amendment free exercise claims against [Defendant Bliss], and to expand the scope of the exhaustion hearing to encompass the same.” (Dkt. No. 47 at 1; Dkt. No. 49 at 1.) Judge D’Agostino cautioned defense counsel that “[i]t would have been prudent . . . to raise this issue sooner. Defense counsel has been on notice that an exhaustion hearing was necessary in this case since” January 15, 2025. (Dkt. No. 50 [citing Dkt. No. 41].) Judge D’Agostino permitted Defendants leave to file a second motion for summary judgment with respect to Defendant Bliss. (Id.) On July 31, 2025, Defendants filed the pending second motion for summary judgment.1 (Dkt. No. 67.) The deadline for Plaintiff to respond to the second motion for summary judgment expired on August 21, 2025. (Dkt. No. 68.) To date, Plaintiff has not filed any opposition or response to the second motion for summary judgment.2 (See generally docket sheet.) 1 Defendants’ motion exceeds the scope of leave granted by Judge D’Agostino. (Compare Dkt. No. 50, with Dkt. No. 67.) Notwithstanding, in the interest of judicial economy, the undersigned considered all of Defendants’ arguments. In the future, defense counsel is cautioned that all arguments must be contained in one succinct motion that complies with, inter alia, N.D.N.Y. L.R. 7.1(b)(1). 2 The Court informed Plaintiff of the deadline to file a response and that failure to do so would result in the motion being deemed unopposed and his complaint potentially being Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 3 of 300
4 C. Defendants’ Statement of Undisputed Material Facts Unless otherwise noted, the following facts were asserted and supported by Defendants in their Statement of Material Facts. (Dkt. No. 67, Attach. 9.) 1. At all times relevant to the Complaint, Plaintiff was an incarcerated individual in the custody of New York State Department of Corrections and Community Supervision (“DOCCS”). 2. Between February 9, 2023, and July 3, 2023, Plaintiff was housed at Marcy Correctional Facility (“Marcy C.F.”).3 3. At all times relevant to the Complaint, there was a fully functioning grievance procedure available to incarcerated individuals at Marcy C.F.4 4. DOCCS’s policies and procedures regarding the Incarcerated Grievance Program (“IGP”) are set forth in Part 701 of Title 7 of the Official Compilation of Codes, Rules and Regulations of the State of New York, which are mirrored with minor refinements in DOCCS’s Policy and Procedure Manual, Directive #4040.5 dismissed without trial. (Dkt. No. 68; see also Dkt. No. 67 at 3.) The undersigned is thus satisfied that Plaintiff has received adequate notice of the consequences of non-opposition to the motion. Jackson v. Jackson, 16-CV-8516, 2021 WL 981849, at *5 (S.D.N.Y. Mar. 16, 2021) (finding adequate notice where the pro se plaintiff “was warned that failure to file an opposition would result in the [c]ourt concluding that the motion was unopposed”); Taylor v. Consol. Rail Corp., 166 F. Supp. 2d 652, 654 (N.D.N.Y. 2001) (McCurn, J.) (finding sufficient notice where the court “thoroughly explained both the procedures plaintiff should follow if he wished to proceed pro se and oppose the summary judgment motion, and the consequences that would result if plaintiff failed to timely submit opposition papers”). 3 (Dkt. No. 67, Attach. 3 at ¶ 12; Dkt. No. 67, Attach. 4 at 3.) 4 (Dkt. No. 67, Attach. 3 at ¶ 12; Dkt. No. 67, Attach. 7 at ¶ 14.) 5 (Dkt. No. 67, Attach. 3 at ¶ 3; Dkt. No. 67, Attach. 7 at ¶ 4.) Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 4 of 300
5 5. The written policies and procedures concerning the IGP are widely distributed and readily accessible to incarcerated individuals.6 6. Both NYCRR Title 7 and Directive #4040 are available in the law library at every DOCCS correctional facility.7 7. At all times relevant to the Complaint, DOCCS Directive #4040 was available in Marcy C.F.’s Law Library and grievance office, where it was available by request for in cell use.8 8. During orientation, incarcerated individuals at Marcy C.F. were instructed how to utilize the grievance process, advised of DOCCS Directive #4040, and informed that Directive #4040 is available in Marcy C.F.’s Law Library.9 9. The IGP provides three levels of administrative review: (1) complaints to the Incarcerated Grievance Review Committee (“IGRC”) at the facility-level; (2) appeals to the facility superintendent; and (3) appeals to the Central Office Review Committee (“CORC”).10 10. For grievances alleging harassment (which includes harm sustained from facility employee misconduct), the IGP follows a separate, expedited procedure.11 6 (Dkt. No. 67, Attach. 3 at ¶¶ 3-4; Dkt. No. 67, Attach. 7 at ¶¶ 5-6.) 7 (Dkt. No. 67, Attach. 3 at ¶¶ 3-4; Dkt. No. 67, Attach. 7 at ¶¶ 5-6.) 8 (Dkt. No. 67, Attach. 3 at ¶¶ 3-4; Dkt. No. 67, Attach. 7 at ¶¶ 5-6.) 9 (Dkt. No. 67, Attach. 3 at ¶ 4.) 10 (Dkt. No. 67, Attach. 3 at ¶ 6; Dkt. No. 67, Attach. 7 at 8); see 7 N.Y.C.R.R. § 701.5. Defendants cite Ms. Seguin’s declaration at paragraph 7 in support of this fact asserted. (Dkt. No. 67, Attach. 9 at ¶ 9 [citing inter alia, Dkt. No. 67, Attach. 7 at ¶ 7].) However, support for this fact is found in Ms. Seguin’s declaration at paragraph 8. (Dkt. No. 67, Attach. 7 at ¶ 8.) 11 (Dkt. No. 67, Attach. 3 at ¶ 8; Dkt. No. 67, Attach. 7 at ¶ 10); see 7 N.Y.C.R.R. § 701.8. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 5 of 300
6 11. All grievances, whether they concern allegations of harassment or not, must be filed within 21 days of the alleged incident.12 12. Extensions of time to file a grievance may be granted, but only upon request in writing within 45 days of the alleged incident.13 13. Absent any extensions, matters not decided within the time limits may be appealed to the next step.14 14. CORC is the final appellate level of the IGP.15 15. Plaintiff’s claims in the instant action were the proper subject for a grievance through DOCCS’s IGP.16 16. With respect to Plaintiff’s allegation that Defendant Bliss violated his First Amendment rights on March 21, 2023, he had until April 11, 2023, to file a timely grievance with the IGRC at Marcy C.F.17 17. Additionally, Plaintiff had until May 5, 2023, to request an extension of time to file a grievance regarding the alleged incident on March 21, 2023.18 12 7 N.Y.C.R.R. §§ 701.5(a)(1), 701.8(a). 13 7 N.Y.C.R.R. § 701.6(g)(1)(i). 14 (Dkt. No. 67, Attach. 3 at ¶ 7); see 7 N.Y.C.R.R. §§ 701.6(g)(2), 701.8(g). 15 (Dkt. No. 67, Attach. 3 at ¶ 9; Dkt. No. 67, Attach. 7 at ¶ 11.) 16 (Dkt. No. 67, Attach. 3 at ¶ 11; Dkt. No. 67, Attach. 7 at ¶ 13.) 17 (Dkt. No. 67, Attach. 3 at ¶ 14); see 7 N.Y.C.R.R. §§ 701.5(a)(1), 701.8(a). 18 (Dkt. No. 67, Attach. 3 at ¶ 14); see 7 N.Y.C.R.R. § 701.6(g)(1)(i). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 6 of 300
7 18. With respect to Plaintiff’s allegation that Defendant Bliss violated his First Amendment rights on March 28, 2023, he had until April 18, 2023, to file a timely grievance with the IGRC at Marcy C.F.19 19. Additionally, Plaintiff had until May 12, 2023, to request an extension of time to file a grievance regarding the alleged incident on March 28, 2023.20 20. DOCCS records maintained at Marcy C.F. show that Plaintiff filed Grievance No. MCY-0241-23 with respect to the alleged incident on March 21, 2023.21 21. Grievance Packet for Grievance No. MCY-0241-23 shows that a decision was made by the IGRC on April 28, 2023.22 22. Further, Grievance Packet for Grievance No. MCY-0241-23 shows that a Superintendent’s response was made on July 10, 2023.23 23. Plaintiff did not appeal the delayed Superintendent’s response—or the lack of a response as the response was issued after the 20-day timeframe—to CORC as required by Directive 4040.24 19 (Dkt. No. 67, Attach. 3 at ¶ 15); see 7 N.Y.C.R.R. §§ 701.5(a)(1), 701.8(a). Defendants cite Ms. Pfendler’s declaration at paragraph 14 in support of this fact asserted. (Dkt. No. 67, Attach. 9 at ¶ 18 [citing inter alia, Dkt. No. 67, Attach. 3 at ¶ 14].) However, support for this fact is found in Ms. Pfendler’s declaration at paragraph 15. (Dkt. No. 67, Attach. 3 at ¶ 15.) 20 (Dkt. No. 67, Attach. 3 at ¶ 15); see 7 N.Y.C.R.R. § 701.6(g)(1)(i). See, supra, note 19. 21 (Dkt. No. 67, Attach. 3 at ¶ 17; Dkt. No. 67, Attach. 5 at 1; Dkt. No. 67, Attach. 6.) 22 (Dkt. No. 67, Attach. 3 at ¶¶ 17, 19; Dkt. No. 67, Attach. 6 at 3.) 23 (Dkt. No. 67, Attach. 3 at ¶¶ 17, 19; Dkt. No. 67, Attach. 6 at 1.) 24 (Dkt. No. 67, Attach. 3 at ¶¶ 19-21.) Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 7 of 300
8 24. DOCCS records maintained at Marcy indicate that Marcy C.F.’s grievance office did not receive any written correspondence from Plaintiff concerning the delayed Superintendent’s response.25 25. DOCCS records maintained at Marcy C.F. confirm that Plaintiff never filed a grievance with respect to the alleged incident on March 28, 2023.26 26. DOCCS records maintained at the CORC reveal that Plaintiff has not appealed any facility level grievances concerning the alleged First Amendment violations on March 21, 2023, or March 28, 2023.27 27. DOCCS records maintained at the CORC show that Plaintiff followed the three- step process of IGP more than 50 times on unrelated matters prior to filing this action.28 D. Briefing on Defendants’ Motion Generally, in support of their motion for partial summary judgment and for judgment on the pleadings, Defendants argue that (1) Plaintiff failed to properly exhaust his administrative remedies before commencing this action with respect to his First Amendment Free Exercise claims against Defendant Bliss; (2) Plaintiff’s First Amendment claim against Defendant Bliss should be dismissed pursuant to Fed. R. Civ. P. 12(c) because it does not rise to a constitutional magnitude as a matter of law; (3) Plaintiff’s First Amendment claim against Defendant Bliss should be dismissed pursuant to Fed. R. Civ. P. 12(c) because Defendant Bliss is entitled to qualified immunity; (4) Plaintiff’s First Amendment claim against Mr. Miller should be 25 (Dkt. No. 67, Attach. 3 at ¶ 20; see Dkt. No. 1 at 18.) 26 (Dkt. No. 67, Attach. 3 at ¶ 18.) 27 (Dkt. No. 67, Attach. 7 at ¶¶ 15-16; Dkt. No. 67, Attach. 8.) 28 (Dkt. No. 67, Attach. 8.) Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 8 of 300
9 dismissed pursuant to Fed. R. Civ. P. 12(c) because it is conclusory and does not contain sufficient factual allegations to support any element of a retaliation claim; and (5) Plaintiff’s Eighth Amendment claim against Defendant Pflueger should be dismissed pursuant to Fed. R. Civ. P. 12(c) because the force used was both reasonable and de minimis. (See generally Dkt. No. 67, Attach. 10.) More specifically, with respect to their first argument, Defendants assert that Plaintiff filed a grievance regarding the incident with Defendant Bliss on March 21, 2023, but did not appeal the Superintendent’s denial (or delayed response) to CORC and thus failed to exhaust his administrative remedies. (Dkt. No. 67, Attach. 10 at 10-11.) In addition, Defendants assert that with respect to the incident with Defendant Bliss on March 28, 2023, Plaintiff did not file any grievance or appeal any alleged grievance to CORC7. (Id.) As a result, Defendants argue that Plaintiff’s First Amendment free exercise claims against Defendant Bliss should be dismissed. (Id.) With respect to their second argument, Defendants argue that in the alternative, Plaintiff’s First Amendment claims against Defendant Bliss should be dismissed for failure to state a claim upon which relief may be granted. (Dkt. No. 67, Attach. 10 at 11-14.) Defendants argue that Plaintiff’s allegation that he experienced one cross-gender pat-down in his four months at Marcy C.F. is precisely the “de minimis level of imposition with which the Constitution is not concerned.” (Id. at 14 [citing Bell v. Wolfish, 441 U.S. 520, 539 (1979)].) With respect to their third argument, Defendants argue that in the alternative, Plaintiff’s First Amendment claims against Defendant Bliss should be dismissed based on the doctrine of qualified immunity. (Dkt. No. 67, Attach. 10 at 14-19.) Defendants argue that there is no clearly established law in the Second Circuit with respect to a prisoner’s right under the First Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 9 of 300
10 Amendment to never be pat-frisked over clothes by a correction officer of the opposite sex due to the prisoner’s religious belief. (Id. at 15-17.) With respect to their fourth argument, Defendants assert that Plaintiff’s First Amendment claim against Mr. Miller should be dismissed because it is conclusory.29 (Dkt. No. 67, Attach. 10 at 19-25.) With respect to their fifth argument, Defendants assert that Plaintiff’s Eighth Amendment claim against Defendant Pflueger should be dismissed because according to Plaintiff’s own version of events, Plaintiff failed to comply with Defendant Pflueger’s orders. (Dkt. No. 67, Attach. 10 at 26.) Defendants argue that Defendant Pflueger’s alleged use of force—where he turned Plaintiff around in a manner that caused Plaintiff’s head to hit the wall and forced handcuffs on Plaintiff—was reasonable under the subjective prong given that Plaintiff disobeyed several direct orders. (Id.) Further, Defendants argue that Defendant Pflueger’s use of force was a “good-faith effort to maintain or restore discipline.” (Id.) Finally, Defendants argue that Plaintiff did not sustain any injuries as a result of the incident and thus failed to state a valid excessive force claim. (Id. at 26-27.) As set forth above, to date, Plaintiff has failed to file any opposition to Defendants’ motion. (See generally docket sheet.) II. RELEVANT LEGAL STANDARDS A. Standard Governing A Motion For Summary Judgment Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as 29 After Defendants filed the pending motion, the claim against Defendant Miller was dismissed and he was terminated from the action. (Dkt. No. 70.) As a result, the undersigned does not address Defendants’ arguments with respect to this dismissed claim. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 10 of 300
11 a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).30 As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law . . . . Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the . . . [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ. P. 56(a), (c), (e). Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute–even if that non- movant is proceeding pro se.31 (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to 30 As a result, “[c]onclusory allegations, conjecture and speculation . . . are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). 31 Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 11 of 300
12 properly respond to the motion for summary judgment.)32 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court’s procedural rules.33 Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response . . . does not . . . [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Grp., Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 56.1. What the non-movant’s failure to respond to the motion does is lighten the movant’s burden. For these reasons, this Court has often enforced Local Rule 56.1(b) by deeming facts set forth in a movant’s statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement34–even when the non-movant was proceeding pro se.35 32 Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases). 33 Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases). 34 Among other things, Local Rule 56.1 (previously contained in Local Rule 7.1(a)(3)) requires that the non-movant file a response to the movant’s Statement of Material Facts, which admits or denies each of the movant’s factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 56.1. 35 Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F. Supp. 2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 12 of 300
13 Similarly, in this District, where a non-movant has willfully failed to respond to a movant’s properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(a)(3).36 Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(a)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate entitlement to the relief requested therein . . . .”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases). B. Standard Governing Exhaustion of Administrative Remedies Under the Prison Litigation Reform Act (“PLRA”), “[n]o action shall be brought with respect to prison conditions under section 1983 . . . 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); see also Ross v. Blake, 136 S. Ct. 1850, 1854-55 (2016) (“The [PLRA] mandates that an inmate exhaust ‘such administrative remedies as are available’ before bringing suit to challenge prison conditions.”). “[T]he PLRA’s exhaustion requirement applies to all 36 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff’s failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1(a)(3) (previously Local Rule 7.1(b)(3)); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff’s failure to respond to “aspect” of defendant’s motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert’s] testimony” on that ground). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 13 of 300
14 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). “There is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). The PLRA requires “proper exhaustion,” which means using all steps required by the administrative review process applicable to the institution in which an inmate is confined and doing so properly. Jones, 549 U.S. at 218 (citing Woodford v. Ngo, 548 U.S. 81, 88 (2006)); see also Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (exhaustion necessitates “‘using all steps that the [government] agency holds out, and doing so properly’” (quoting Woodford, 548 U.S. at 90)). In New York State prisons, DOCCS has a well-established three-step IGP, in which, (1) the inmate must file a grievance with the IGRC within twenty-one days of the alleged occurrence, (2) the inmate must then appeal an adverse decision by the IGRC to the superintendent of the facility within seven days after receipt of the IGRC’s response, and (3) the inmate must then appeal an adverse decision by the superintendent to the CORC within seven days after receipt of the superintendent’s response. 7 N.Y.C.R.R. § 701.5; McGee v. McGready, 16-CV-4187, 2018 WL 2045094, at *2 (S.D.N.Y. Apr. 30, 2018). “[W]hen a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint to bypass IGRC review and proceed before the Superintendent in the first instance.” Jackson v. Jackson, 16-CV-8516, 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16, 2021); see 7 N.Y.C.R.R. § 701.8. Under the expedited procedure, the Superintendent has twenty-five days to respond to the grievance. 7 N.Y.C.R.R. § 701.8. If the Superintendent fails to respond within twenty-five days, the inmate may appeal directly to CORC. Id. § 701.8(g). If the Superintendent does respond, the inmate has seven days from Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 14 of 300
15 receipt of the response to appeal to CORC. Id. § 701.8(h). The IGP Supervisor has discretion to grant exceptions to the time limits for filing or appealing grievances. See id. § 701.6(g). Whether or not the Superintendent timely responds, the procedure to appeal a determination of the Superintendent to CORC is to file “a notice of decision to appeal (form #2133) with the inmate grievance clerk.” Id. § 701.8(g)-(h).37 Inmates who have been transferred to a different facility can get their appeal to the appropriate grievance clerk by “mail[ing] the signed appeal form back to the IGP supervisor at the facility where the grievance was originally filed.” Id. § 701.6(h)(2). “CORC is required to provide, through IGP staff, written confirmation that an appeal has been received, and if the inmate does not receive such confirmation within forty-five days, he ‘should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.’” Ruiz v. Link, 20-CV-0235, 2022 WL 3020254, at *4 (S.D.N.Y. July 29, 2022) (quoting 7 N.Y.C.R.R. § 701.5(d)(3)(i)). The IGP requires CORC to respond to an appeal within thirty days of receipt. 7 N.Y.C.R.R. § 701.5(d)(3)(ii). If CORC has received an appeal and fails to rule within those thirty days, the inmate is considered to have exhausted his administrative remedies and may file suit. Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020). While the PLRA mandates exhaustion of administrative remedies, it also “contains its own, textual exception to mandatory exhaustion.” Ross, 136 S. Ct. at 1858. More specifically, section 1997e(a) provides that only those administrative remedies that “are available” must first be exhausted. 42 U.S.C. § 1997e(a); see also Ross, 136 S. Ct. at 1858 (“[T]he exhaustion requirement hinges on the availability of administrative remedies[.]”) (quotation marks and 37 The procedure to appeal to CORC under the normal, non-expedited procedures is the same. 7 N.Y.C.R.R. § 701.5(d)(1)(i). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 15 of 300
16 citations omitted). In the PLRA context, the Supreme Court has determined that “availability” means that “an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of.” Ross, 136 S. Ct. at 1859 (quotation marks and citations omitted). The Ross Court identified three circumstances in which a court may find that internal administrative remedies are not available to prisoners under the PLRA. Id. at 1859-60. 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. at 1859. “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Finally, an administrative remedy is not “available” when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. In Williams v. Corr. Officer Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016), the Second Circuit noted that “the three circumstances discussed in Ross do not appear to be exhaustive[.]” The illustrations of unavailability in Ross nonetheless guide the Court’s inquiry. Mena v. City of New York, 13-CV-2430, 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016). Because non-exhaustion is an affirmative defense, the defendant bears the burden of showing that a prisoner has failed to satisfy the exhaustion requirements. See Jones, 549 U.S. at 216. The plaintiff must then establish the IGP grievance procedure was unavailable to him under Ross. Id. C. Standard Governing Motions to Dismiss for Judgment on the Pleadings “After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). The standard for granting a Rule 12(c) Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 16 of 300
17 motion is identical to that of a 12(b)(6) motion to dismiss. Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). To survive a Rule 12(b)(6) motion to dismiss, the complaint’s factual allegations must be enough to elevate the plaintiff’s right to relief above the level of speculation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). So while legal conclusions can provide a framework for the complaint, they must be supported with meaningful allegations of fact. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). In short, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. To assess this plausibility requirement, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant’s favor. Erickson v. Pardus, 551 U.S. 89, 94 (2007). In doing so, the court generally confines itself to the facts alleged in the pleading, any documents attached to the complaint or incorporated into it by reference, and matters of which judicial notice may be taken. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). III. ANALYSIS A. Free Exercise Claims Against Defendant Bliss After carefully considering the matter, I recommend that Defendants’ partial motion for summary judgment be granted because Plaintiff failed to exhaust his available administrative remedies with respect to the First Amendment free exercise claims against Defendant Bliss. 1. Exhaustion Defendants submitted proof in admissible form by way of an affidavit from Erin Pfendler, the IGP supervisor at Marcy C.F. (Dkt. No. 67, Attach. 3.) In her affidavit, Ms. Pfendler stated that she conducted a diligent search of DOCCS records for any grievances filed by Plaintiff related to his claims in this action. (Id. at ¶ 16.) Ms. Pfendler affirmed that her Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 17 of 300
18 search revealed that Plaintiff filed a grievance with respect to the alleged incident with Defendant Bliss on March 21, 2023, but did not file any grievance related to the alleged incident with Defendant Bliss on March 28, 2023. (Id. at ¶¶ 11, 16-19; Dkt. No. 67, Attach. 5; Dkt. No. 67, Attach. 6.) In addition, Moving Defendants submitted proof in admissible form by way of an affidavit from Rachael Seguin, the custodian of records maintained by CORC. (Dkt. No. 67, Attach. 7.) In her affidavit, Ms. Seguin stated that she searched record appeals received by CORC filed by Plaintiff, and her search revealed “Plaintiff did not appeal any grievances to CORC relating to” the alleged incidents with Defendant Bliss on March 21, 2023, and March 28, 2023. (Id. at ¶¶ 15-16.) Plaintiff alleged that with respect to Grievance No. MCY-0241-23 (the grievance related to the incident on March 21, 2023), the Superintendent at Marcy C.F. “intentionally delay[ed] his response to prevent the complaint from reaching the [CORC] and to impede the exhaustion of [Plaintiff’s] administrative remedies.” (Dkt. No. 1 at 18.) In addition, Plaintiff alleged that he filed a grievance related to the incident on March 28, 2023, but that the grievance was “neither fil[]ed or processed.” (Id.) These conclusory allegations are insufficient to withstand a motion for summary judgment. See Logan v. Graham, 18-CV-0291, 2019 WL 8015209, at *11 (N.D.N.Y. Nov. 26, 2019) (Lovric, M.J.) (“Generally, conclusory allegations that an inmate appealed the superintendent’s grievance denial to CORC are insufficient to withstand a motion for summary judgment), report and recommendation adopted 2020 WL 871197 (N.D.N.Y. Feb. 21, 2020) (Hurd, J.); Gibbs v. Gadway, 19-CV-0281, 2019 WL 5191506, at *3 (N.D.N.Y. Oct. 15, 2019) (Stewart, M.J.) (recommending dismissal based on the plaintiff’s failure to exhaust his administrative remedies where the plaintiff made “a purely conclusory allegation that he Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 18 of 300
19 appealed the grievance denial to CORC.”), report and recommendation adopted 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (Suddaby, C.J.). In contrast, “the case law implies that where a plaintiff sets forth the date that he or she appealed the grievance to CORC, that may be enough to survive a motion for summary judgment.” Logan v. Graham, 2019 WL 8015209, at *11 (citing Gibbs, 2019 WL 5191506, at *3 (recommending dismissal of the plaintiff’s claims for failure to exhaust his administrative remedies where the plaintiff “has not provided a copy of the grievance appeal or even asserted what date he filed the appeal.”); Gough v. Morris, 16-CV-1107, 2018 WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018) (Stewart, M.J.) (recommending dismissal based on the plaintiff’s failure to exhaust his administrative remedies where he testified that he appealed the superintendent’s response to CORC but there was no evidence in the record that (a) the grievance or the superintendent’s response were appealed to CORC and, (b) despite not receiving a response from CORC, the plaintiff testified that he did not write to CORC to follow-up); Campbell v. Prue, 16-CV-0004, 2018 WL 4635708, at *5 (N.D.N.Y. July 3, 2018) (Hummel, M.J.) (“Although [the plaintiff] alleges that he filed [a] grievance . . . , plaintiff does not state when he filed such grievance . . . . Further, plaintiff has not provided a copy of the alleged grievance or the Marcy IGRC’s denial of that grievance.”); Toliver v. Stefinik, 12-CV-0077, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016) (D’Agostino, J.) (“vague and conclusory allegations . . . [regarding] grievances . . . do not, in light of the documentation Defendants have provided about Plaintiff’s grievance history, create a factual dispute material to the issue of whether Plaintiff exhausted his administrative remedies.”); Smith v. Kelly, 985 F. Supp. 2d 275, 289 (N.D.N.Y. 2013) (Suddaby, J.) (granting the defendants’ motion for summary judgment on the issue of exhaustion where the plaintiff failed to “identify the name of the ‘IGRC’s Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 19 of 300
20 supervisor’ who purportedly told him that a new prisoner does not file a grievance at Auburn C.F. if it pertains to the prisoner’s previous facility, nor does he specify the date, means or location of this purported communication.”)); cf. Braxton v. Bruen, 17-CV-1346, 2020 WL 5752333, at *7 (N.D.N.Y. Aug. 24, 2020) (Lovric, M.J.) (denying a motion for summary judgment where the plaintiff “proffered copies of his . . . appeals” and gathering cases), report and recommendation adopted, 2020 WL 5751172 (N.D.N.Y. Sept. 25, 2020) (Sannes, J.). Plaintiff failed to oppose Defendants’ pending motion and thus fails to provide any rebuttal to the record evidence that Plaintiff did not exhaust his administrative remedies. Indeed, Plaintiff does not provide a copy of the grievance he allegedly filed related to the incident with Defendant Bliss on March 28, 2023, nor does he provide the date that he allegedly filed such a grievance. (See generally Dkt. No. 1.) Moreover, Plaintiff fails to allege that he appealed these grievances to CORC, provide a copy of his appeals to CORC, or identify the dates that he allegedly appealed to CORC. As a result, I find Plaintiff’s unsupported, general assertion that he filed a grievance and his silence regarding the requirement that appeal grievances to CORC, are insufficient to establish a genuine issue of material fact regarding exhaustion. See Bernier v. Koenigsmann, 17- CV-0254, 2021 WL 2269839, at *18 (N.D.N.Y. May 13, 2021) (Baxter, M.J.) (citing Davis v. Grant, 15-CV-5359, 2019 WL 498277, at *10 (S.D.N.Y. Feb. 8, 2019) (plaintiff’s statements that his grievance was lost or destroyed, which stood alone and unsupported, did not warrant exception to exhaustion requirement); Engles v. Jones, 13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y. Dec. 28, 2018) (granting summary judgment to defendants for failure to exhaust where there was no record of plaintiff filing his grievance and plaintiff merely alleged without any documentary support that his grievance was lost or destroyed); Scott v. Kastner-Smith, 298 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 20 of 300
21 F. Supp. 3d 545, 555 (W.D.N.Y. 2018) (“[C]ourts have consistently held . . . that an inmate’s general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.”)) (“plaintiff’s unsupported, general testimony that grievance AUB-6602-15 was ‘lost’ in the appeals process is insufficient to establish a genuine issue of material fact.”), report and recommendation adopted, 2021 WL 2264315 (N.D.N.Y. June 3, 2021) (Hurd, J.). 2. Availability of Administrative Remedies Having before the Court no argument from Plaintiff regarding availability, out of special solicitude, the undersigned has searched the record for potential arguments that administrative remedies may have been unavailable to him. See Jackson v. West, 23-CV-0306, 2025 WL 1033787, at *4 (N.D.N.Y. Feb. 20, 2025) (Evangelista, M.J.), report and recommendation adopted, 2025 WL 814966 (N.D.N.Y. Mar. 14, 2025) (Kahn, J.). The Supreme Court of the United States, in Ross, identified three circumstances in which a court may find administrative remedies are not “available” for purposes of exhaustion under the PLRA: [A]n administrative procedure is unavailable when it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use—i.e., some mechanism exists to provide relief, but no ordinary prisoner can navigate it. And finally, a grievance process is rendered unavailable when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. Ross, 578 U.S. at 643-44. First, there nothing in the record to support that the “dead end” exception applies. Williams v. Priatno, 829 F.3d 118, 123-24 (2d Cir. 2016). Indeed, Plaintiff filed a grievance with respect to the alleged incident with Defendant Bliss on March 21, 2023. (Dkt. No. 67, Attach. 6); Jackson, 2025 WL 1033787, at *12 (citing Matthews v. Sweeney, 17-CV-0503, 2025 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 21 of 300
22 WL 447734, at *7, *7 n.13 (N.D.N.Y. Feb. 10, 2025) (Suddaby, J.)) (“Courts have rejected arguments that the grievance procedure was a ‘dead end’ where the plaintiffs chose to participate in the grievance procedure in some way, even in unrelated matters, concluding that such participation demonstrates that the plaintiffs did not view the grievance procedure as a dead end.”). The fact that Plaintiff was able to grieve other matters during the same time period demonstrates that administrative remedies were not a dead end. See Jackson, 2025 WL 1033787, at *12. Next, the opaqueness exception also does not apply to cure Plaintiff’s non-exhaustion. Administrative relief is unavailable where “[t]he regulations simply do not contemplate the situation in which the prisoner found himself, making it practically impossible for him to ascertain whether and how he could pursue his grievance.” Williams, 829 F.3d at 124. In other words, administrative relief is opaque when the procedure for the incarcerated person to procure relief under the circumstances is “so confusing that . . . no reasonable prisoner can use it.” Id. (quoting Ross, 578 U.S. at 644). Ms. Pfendler declared that, upon arrival to Marcy C.F., incarcerated individuals attend an orientation during which they are “provided instructions on the grievance process and are advised of DOCCS Directive #4040, which states, in pertinent part, that grievances must contain a concise and specific description of the problem and action requested.” (Dkt. No. 67, Attach. 3 at ¶ 4.) Ms. Pfendler declared that Title 7 of the Official Compilation of Codes, Rules, and Regulations of the State of New York and DOCCS Directive 4040 were available in Marcy C.F.’s law library. (Id. at ¶ 3.) Moreover, to the extent that Plaintiff’s allegation that the Superintendent delayed responding to Grievance No. MCY-0241-23 (the grievance related to the incident on March 21, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 22 of 300
23 2023), “to prevent the complaint from reaching the [CORC] and to impede the exhaustion of [Plaintiff’s] administrative remedies,” is construed as an opaqueness argument, I find it unpersuasive. Indeed, 7 N.Y.C.R.R. § 701.5(c)(4) states that if a superintendent “decision is not implemented within 45 days, the grievant may appeal to CORC.” Hence, the regulations directly contemplated the situation that Plaintiff found himself in with the Superintendent’s delayed response to his appeal in Grievance No. MCY-0241-23. Plaintiff does not claim that he was confused by the applicable exhaustion policy, and in any event, any such a conclusory claim would be insufficient to apply the opaqueness exception. See, e.g., Jackson, 2025 WL 1033787, at *9 (holding that the grievance procedure was not opaque where plaintiff claimed that he did not understand how to appeal, but the plaintiff failed to seek assistance or pay attention at the facility’s IGP orientation and the plaintiff successfully initiated the first step on several grievances). Finally, Plaintiff was not thwarted from using the prison’s grievance process regarding his claims through “machination, misrepresentation, or intimidation by prison officials.” Ross, 578 U.S. at 644. As this Court has stated, “general and conclusory statements that [an incarcerated individual] was threatened are insufficient to raise a triable issue of fact as to the unavailability of the grievance procedure because of intimidation by prison administrators.” Gibbs v. Gadway, 19-CV-0281, 2019 WL 5191506, at *5 (N.D.N.Y. Oct. 15, 2019) (Stewart, M.J.), report and recommendation adopted, 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (Suddaby, C.J.) (quoting Lewis v. Wasielewski, 15-CV-0168, 2018 WL 4732755, at *6 (W.D.N.Y. July 10, 2018), report and recommendation adopted, 2018 WL 4692476 (W.D.N.Y. Oct. 1, 2018)). “Allegations of threats are conclusory where a plaintiff’s allegation ‘does not indicate who threatened him, when he was threatened, or how he was threatened.’” Rodriguez v. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 23 of 300
24 Cross, 15-CV-1079, 2017 WL 2791063, at *8 (N.D.N.Y. May 9, 2017) (Hummel, M.J.), report and recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June 27, 2017) (Suddaby, C.J.) (citing Johnson v. Fraizer, 16-CV-6096, 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1, 2016)). As a result, I recommend that Defendants’ partial motion for summary judgment be granted and Plaintiff’s First Amendment free exercise claims against Defendant Bliss be dismissed because Plaintiff failed to exhaust his administrative remedies.38 B. Eighth Amendment Claim Against Defendant Pflueger After carefully considering the matter, I recommend dismissing Plaintiff’s excessive force claim against Defendant Pflueger for the reasons stated in Defendants’ memorandum of law. (Dkt. No. 67, Attach. 10 at 25-27.) The following is intended to supplement, not supplant, those reasons. The Eighth Amendment protects prisoners from “cruel and unusual punishment” at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). This includes punishments that “involve the unnecessary and wanton infliction of pain.” Gregg v. Georgia, 428 U.S. 153, 173 (1976). The Eighth Amendment’s prohibition against cruel and unusual punishment encompasses the use of excessive force against an inmate, who must prove both an objective and subjective element. Parson v. Campbell, 25- CV-0956, 2025 WL 3514155, at *10 (N.D.N.Y. Dec. 8, 2025) (Katz, M.J.) (citing Blyden v. 38 Because of this recommendation, the undersigned did not consider Defendants’ alternative arguments regarding Plaintiff’s First Amendment free exercise claims against Defendant Bliss. (Dkt. No. 67, Attach. 10 at 11-19); see Ross v. Blake, 578 U.S. 632, 638 (2016) (holding that exhaustion is “mandatory—unexhausted claims may not be pursued in federal court.”). To the extent that the assigned District Judge disagrees with this recommendation, it is requested that she return this matter to the undersigned for consideration of Defendants’ arguments regarding Plaintiff’s First Amendment free exercise claims pursuant to Fed. R. Civ. P. 12(c). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 24 of 300
25 Mancusi, 186 F.3d 252, 262 (2d Cir. 1999); Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993)). To satisfy the objective element, a plaintiff must prove that a defendant’s conduct was “inconsistent with the contemporary standards of decency.” Whitely v. Albers, 475 U.S. 312, 327 (1986) (citation omitted); Hudson v. McMillian, 503 U.S. 1, 9 (1992). “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-10 (citations omitted). “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates a prisoner’s constitutional rights.” Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (citation omitted). Claims “of excessive force may be established even if the victim does not suffer serious . . . or significant injury, . . . provided that the amount of force used is more than de minimis or involves force that is repugnant to the conscience of mankind.” Hudson, 503 U.S. at 7-10 (cleaned up). To prove the subjective element, a plaintiff must show that the defendant’s actions were wanton. Sims, 230 F.3d. at 21 (citation omitted). The wantonness inquiry “turns on ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’” Id. (quoting Hudson, 503 U.S. at 7). When determining whether defendants acted in a malicious or wanton manner, courts consider five factors: (1) the extent of the injury and the mental state of the defendant; (2) the need for the application of force; (3) the correlation between that need and the amount of force used; (4) the threat reasonably perceived by the defendants; and (5) any efforts made by the defendants to temper the severity of a forceful response. Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 25 of 300
26 Indeed, “Courts in the Second Circuit have found that . . . where a corrections officer forcefully shoves or pushes an inmate [it is] insufficient to satisfy the objective prong of an excessive force claim. George v. Cnty. of Westchester, 20-CV-1723, 2021 WL 4392485, at *9 (S.D.N.Y. Sept. 24, 2021) (citing Tavares v. City of New York, 08-CV-3782, 2011 WL 5877550, at *5-6 (S.D.N.Y. Oct. 17, 2011) (holding that a pat frisk where the plaintiff was “forcefully ‘compressed’ against the wall” was not a violation of the Eighth Amendment and noting that “[c]ourts in this Circuit have routinely found such types of minimal injuries and pain insufficiently serious or harmful to satisfy the objective element of the Eighth Amendment analysis”), report and recommendation adopted, 2011 WL 5877548 (S.D.N.Y. Nov. 23, 2011); James v. Phillips, 05-CV-1539, 2008 WL 1700125, at *5 (S.D.N.Y. Apr. 9, 2008) (concluding that a guard’s “shov[ing] of an inmate” constituted a de minimis use of force that could not give rise to a viable excessive force claim); Show v. Patterson, 955 F. Supp. 182, 192-93 (S.D.N.Y. 1997) (concluding that the alleged force—“pushing [the plaintiff] against the wall”—was “de minimis and thus not protected by the Eighth Amendment”); Bryan v. Admin. of F.C.I. Otisville, 897 F. Supp. 134, 137 (S.D.N.Y. 1995) (“The Second Circuit has deemed brief confrontations between prisoners and guards such as the pushing incident alleged here insignificant for Eighth Amendment purposes.”)). Here, Plaintiff alleged that Defendant Pflueger “turn[ed Plaintiff] around in a manner that caused [his] head to hit the wall behind [him] and forc[ed] handcuffs on [Plaintiff].” (Dkt. No. 1 at 7.) These allegations, without more, are insufficient to plausibly suggest the objective element of an excessive force claim. See Velasco v. Williams, 23-CV-0419, 2025 WL 3470472, at *7 (D. Conn. Dec. 3, 2025) (holding that the alleged force—pushing the plaintiff and holding him Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 26 of 300
27 against a wall—“does not establish the objective prong of an Eighth Amendment excessive force claim.”). For each of these reasons, I recommend that Plaintiff’s Eighth Amendment excessive force claim against Defendant Pflueger be dismissed for failure to state a claim upon which relief may be granted.39 ACCORDINGLY, it is respectfully RECOMMENDED that Defendants’ partial motion for summary judgment (Dkt. No. 67) be GRANTED and Plaintiff’s First Amendment free exercise claims against Defendant Bliss be DISMISSED for failure to exhaust administrative remedies; and it is further respectfully RECOMMENDED that Defendants’ motion for judgment on the pleadings (Dkt. No. 67) be GRANTED to the extent that it seeks dismissal of Plaintiff’s Eighth Amendment excessive force claim against Defendant Pflueger pursuant to Fed. R. Civ. P. 12(c); and it is further respectfully RECOMMENDED that Plaintiff’s Complaint (Dkt. No. 1) be DISMISSED in its entirety and the action closed; and it is further 39 In addition, the undersigned notes that pursuant to N.D.N.Y. L.R. 41.2(a), “[w]henever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge may order it dismissed. In the absence of an order by the assigned judge or magistrate judge setting any date for any pretrial proceeding or for trial, the plaintiff’s failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.” A review of the docket in this action reveals that the last correspondence that the Court has received on Plaintiff’s behalf is from his assigned pro bono counsel in July 2025, approximately six months ago. (Dkt. No. 62, Minute Entry dated 7/8/2025.) Indeed, Plaintiff failed to appear for the exhaustion hearing that was held on July 8, 2025, and has since failed to take any action in this matter. (See generally docket sheet.) As a result, in the alternative, this action could be dismissed pursuant to N.D.N.Y. L.R. 41.2 for failure to prosecute. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 27 of 300
28 ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.40 NOTICE: Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written objections to the foregoing report.41 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) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72. Dated: January __, 2026 Binghamton, New York 40 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). 41 If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. FED. R. C IV. 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. F ED. R. C IV. P. 6(a)(1)(C). 6 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 28 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2021 WL 2269839 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Jean BERNIER, Plaintiff, v. Carl KOENIGSMANN, et al., Defendants. 9:17-CV-0254 (DNH/ATB) | Signed 05/13/2021 Attorneys and Law Firms JEAN BERNIER, Plaintiff, pro se. JAMES A. MEGGESTO, ESQ., for Defendant Jeavons NICOLE HAIMSON, ESQ., for Defendants Koenigsmann, Jones, Coryer, Donnelly, O'Connor-Ryerson, Gilfus, Hesse, Ashley, Gardner, Dinello and Mueller REPORT-RECOMMENDATION Andrew T. Baxter, U.S. Magistrate Judge *1 This matter was referred to me for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). In the relevant portions of this civil rights complaint, plaintiff alleges that the defendants violated his constitutional rights while he was incarcerated at Auburn Correctional Facility (“Auburn C.F.”) and Southport Correctional Facility (“Southport C.F.”) between June 2013 and June 2015. (Second Amended Complaint (“SAC”) at 10-25) (Dkt. No. 64). 1 I. Relevant Procedural History Plaintiff filed his original complaint in the United States District Court for the Western District of New York on March 6, 2015. (Dkt. No. 1). He subsequently filed an amended complaint on September 14, 2015. (Dkt. No. 20). On February 15, 2017, several of plaintiff's claims were severed and transferred to the Northern District of New York. (Dkt. Nos. 50, 51). Plaintiff then moved to amend his complaint in the Northern District, and plaintiff's SAC was accepted for filing on June 30, 2017. (Dkt. Nos. 57, 63, 64). On July 28, 2017, the defendants 2 filed a partial motion to dismiss the SAC pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No. 71). On March 15, 2018, District Court Judge David N. Hurd adopted my report-recommendation ordering dismissal of certain defendants and claims contained in the SAC. (Dkt. Nos. 96, 104). Judge Hurd dismissed several other defendants from this action on July 30, 2019, at the request of the plaintiff and upon consent from the defendants. 3 (Dkt. Nos. 143, 144, 145). The remaining claims and defendants are as follows: (1) Eighth Amendment medical indifference claims against defendants Ashley and O'Connor-Ryerson. Plaintiff alleges that these defendants violated his constitutional rights when they discontinued his triple combination therapy treatment for the Hepatitis C virus (“HCV”) after he was transferred to Auburn C.F. in June 2013. (2) Eighth Amendment medical indifference claims against defendants Koenigsmann, Mueller, Dinello, Jones, Coryer, O'Connor-Ryerson, Ashley, Gardner, and Jeavons. Plaintiff alleges that these defendants violated his constitutional rights when they delayed his evaluation for, and ultimately denied him, HCV treatment in 2015. (3) First Amendment retaliation claims against defendants Ashley, O'Connor-Ryerson, and Jeavons. Plaintiff alleges that these defendants intentionally delayed plaintiff's evaluation for HCV treatment in 2015, in retaliation for plaintiff filing a grievance against defendants Ashley and O'Connor-Ryerson in 2013 concerning the discontinuation of his triple combination therapy treatment. *2 (4) First Amendment retaliation claims against defendants Hesse, Gilfus, and Donnelly. Plaintiff alleges that these defendants destroyed his legal documents and tampered with his property, in retaliation for plaintiff filing a grievance and lawsuit against Hesse concerning interference with plaintiff's program placement. Presently before the court are the defendants’ motions for summary judgment pursuant to Fed. R. Civ. P. 56, collectively seeking dismissal of the SAC in its entirety. 4 (Dkt. Nos. 210, 213). The Wilson Elser defendants responded to defendant Jeavons's motion on November 23, 2020 (Dkt. No. 217), to which defendant Jeavons filed a reply on December 1, 2020. (Dkt. No. 218). Plaintiff filed an opposition to the pending Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 29 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 motions for summary judgment on March 26, 2021. (Dkt. No. 223). Defendant Jeavons replied on April 8, 2021. (Dkt. No. 227). For the reasons stated below, the court recommends granting the defendants’ motions for summary judgment and dismissing the remaining claims in the SAC against all of the remaining defendants. II. Summary Judgment Summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Salahuddin v. Goord, 467 F.3d 263, 272–73 (2d Cir. 2006). “Only disputes over [“material”] facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1224 (2d Cir. 1994). The moving party has the burden to show the absence of disputed material facts by informing the court of portions of pleadings, depositions, and affidavits which support the motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a genuine issue for trial. Salahuddin v. Goord, 467 F.3d at 273. In that context, the nonmoving party must do more than “simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In determining whether there is a genuine issue of material fact, a court must resolve all ambiguities, and draw all inferences, against the movant. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Salahuddin, 467 F.3d at 272. Local Rules of the Northern District of New York require that a motion for summary judgment be accompanied by a statement of material facts which sets forth, in numbered paragraphs, “a short and concise statement of each material fact about which the moving party contends there exists no genuine issue.” Local Rule 56.1(a). 5 The same rule requires the opposing party to file a response to the moving party's statement of material facts, which admits or denies each of the moving party's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issues arise. Local Rule 56.1(b). The rule specifically provides that “[t]he Court may deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” Id. III. Factual Contentions *3 In the 1990s, plaintiff was diagnosed with HCV, a slow- progressive infectious disease affecting the liver. (Declaration of Carl J. Koenigsmann (“Koenigsmann Decl.”) at ¶ 8 (Dkt. No. 210-6); Declaration of Nancy O'Connor-Ryerson (“Ryerson Decl.”) at ¶ 12 (Dkt. No. 210-7) ). HCV causes liver damage to occur over a prolonged period of time, leading to liver failure and death at a “relatively low rate.” (Koenigsmann Decl. at ¶¶ 9-10). The success rate of HCV treatment varies and is dependent upon unique factors such as the “body chemistry of an individual patient, the genoytype of the virus, other conditions from which the patient may be suffering, and individual behaviors.” (Ryerson Decl. at ¶ 20). The side effects of HCV treatment can be significant, and even life-threatening. (Koenigsmann Decl. at ¶ 15; Ryerson Decl. at ¶ 23). Treatment must be individualized on a case- by-case basis. (Koenigsmann Decl. at ¶ 17; Ryerson Decl. at ¶ 25). From approximately May 2003 until June 2015, plaintiff was confined in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). All of the events relevant to plaintiff's surviving causes of action took place between June 2013 and June 2015, during which time plaintiff was housed intermittently between Auburn C.F. and Southport C.F. During the time period at issue, DOCCS maintained extensive treatment guidelines and professional oversight with respect to treating inmates diagnosed with HCV. (Koenigsmann Decl. at ¶¶ 12-19; Ryerson Decl. at ¶¶ 19, 23, 25). A. Triple Combination Therapy Treatment Plaintiff was transferred to Southport C.F. in December 2012, at which time he sought evaluation for HCV treatment. (SAC at ¶ 40; Ryerson Decl. at ¶ 40). This was plaintiff's second attempt to treat his HCV while in DOCCS custody – more than a decade earlier plaintiff had undergone, but failed, dual therapy HCV treatment. (SAC at ¶ 39; Ryerson Decl. at ¶ 29). The treatment plaintiff pursued at Southport C.F. was “triple combination therapy,” approved to reduce viral loads in HCV patients. (SAC at ¶ 40; Ryerson Decl. at ¶¶ 30-31). Plaintiff Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 30 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 was approved for triple combination therapy at Southport C.F., and commenced the twelve week medical regiment in March 2013. (SAC at ¶¶ 40-41; Ryerson Decl. at ¶¶ 41-44). The parties do not dispute that plaintiff “failed” the triple combination therapy treatment per DOCCS’ HCV Guidelines, to the extent that plaintiff's viral loads were not satisfactorily reduced at the end of twelve weeks. (SAC at ¶ 41; Ryerson Decl. at ¶¶ 43, 45-47, 51-52). Plaintiff alleges that despite the treatment failure, “the treatment was continued [at Southport C.F.] pursuant to a recommendation by the consulting liver specialist.” (SAC at ¶¶ 41-42; see also Affirmation of Nicole Haimson (“Haimson Aff.”) (Dkt. No. 210-2) Ex. A (“Pl.’s Dep.”) at 30-32). On or about June 14, 2013, plaintiff was transferred from Southport C.F. to Auburn C.F. (Ryerson Decl. at ¶ 48). Plaintiff alleges that he received medication in connection with his triple combination therapy treatment at Southport C.F. on the morning of his departure. (Pl.’s Dep. at 32). Upon arrival to Auburn C.F., plaintiff was subjected to a health screening and review of his current medications. (Ryerson Decl. at ¶¶ 49-50, Ex. E at 99-101 (Dkt. No. 210-12) ). While reviewing plaintiff's HCV treatment history, defendant Nurse Practitioner (“NP”) O'Connor-Ryerson noted that plaintiff's viral loads were greater than 1,000 international units per milliliter (IU/mL) after twelve weeks of treatment with triple combination therapy, were not reduced by 2-log 6 from his baseline blood work, and actually increased between weeks eight and twelve, all of which were indicative of treatment failure under DOCCS's HCV treatment guidelines. (Ryerson Decl. at ¶ 51). *4 Plaintiff met with NP Ryerson on June 18, 2013. (SAC at ¶ 44; Ryerson Decl. Ex. E at 103). He was allegedly informed by NP Ryerson that, upon consulting with defendant IFD Nurse Ashley, 7 they had decided to discontinue his triple combination therapy due to the evidence of treatment failure. (SAC at ¶ 44). Plaintiff's ambulatory health record progress notes indicate that he was taken “off meds.” (Ryerson Decl. Ex. E at 101, 103). On or about June 21, 2013, defendant DOCCS Chief Medical Officer (“CMO”) Koenigsmann notified plaintiff that his HCV treatment had been discontinued “due to failure of treatment.” (Id. Ex. E at 105). NP Ryerson does not dispute that plaintiff's triple combination therapy treatment was discontinued at Auburn C.F. Although NP Ryerson has no recollection of doing so, she concedes that upon review of plaintiff's medical records, it would have been her custom and practice to consult with Nurse Ashley. (Ryerson Decl. at ¶¶ 53-54). However, neither she nor Nurse Ashley retained the authority to unilaterally discontinue an inmate's HCV treatment. (Id.). On or about June 27, 2013, plaintiff filed a grievance against NP Ryerson and Nurse Ashley regarding the discontinuation of his triple combination therapy treatment. (Declaration of Rachel Seguin (“Seguin Decl.”) (Dkt. No. 210-3) Ex. A at 4; Pl.’s Dep. at 40-41). Plaintiff alleges that the discontinuation of treatment caused his condition to worsen, and his HCV symptoms to return. (SAC at ¶ 45). B. Harvoni Treatment In approximately October 2014, the FDA approved the use of the drug Harvoni for treatment of chronic HCV genotype one infections. (Koenigsmann Decl. at ¶ 26). Harvoni became available for use by DOCCS shortly after it received FDA approval. (Id. at ¶ 28-31). In or around January 2015, plaintiff's primary care was taken over by defendant NP Christa Jeavons. (Ryerson Decl. Ex. F at 33-34) (Dkt. No. 210-13). On January 20, 2015, plaintiff wrote a letter to NP Jeavons requesting an appointment to discuss Harvoni treatment with her. (Id.). NP Jeavons responded on January 28 th , confirming an appointment was scheduled per plaintiff's request. (Id.). Plaintiff was also notified several times by defendant Nurse Administrator Coryer that he was scheduled to see NP Jeavons. (Id. at 36, 42, 43, 44). NP Jeavons met with plaintiff on or about February 10, 2015. (Id. Ex. F at 54; SAC at ¶ 55; Declaration of Christa Jeavons (“Jeavons Decl.”) at ¶ 30 (Dkt. No. 213-1). In addition, plaintiff was seen for sick call at Auburn C.F. on several occasions in January 2015 and the beginning of February 2015. (Ryerson Decl. Ex. F at 40-41, 53-55). The ambulatory health record progress notes from this period of time indicate that plaintiff appeared in no acute distress and was scheduled for an IFD follow up “soon” relative to his HCV treatment. (Id.). The records also reflect plaintiff's request to be placed on a medical hold at Auburn C.F., and for Harvoni treatment to be started “soon,” in light of his upcoming release from DOCCS custody. (Id. Ex. F at 53). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 31 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 On or about February 13, 2015, plaintiff was transferred from Auburn C.F. to Southport C.F. 8 There, plaintiff inquired as to the “feasibility” of being placed on a medical hold at Southport C.F., relative to his pending evaluation for HCV treatment. (Ryerson Decl. Ex. F at 65). Plaintiff was informed that he would not be placed on a medical hold, as he could “continue to receive the medical care [he] need[ed] at any facility[.]” (Id. Ex. F at 66, 73). In March 2015, while still at Southport C.F., plaintiff had laboratory testing performed in connection with his treatment evaluation. (Id. at ¶¶ 69-70; Ex. F at 80-84). *5 Plaintiff was transferred back to Auburn C.F. on or about March 9, 2015. Throughout March, plaintiff was repeatedly seen by medical staff who noted that he had an upcoming appointment with an IFD consultant. (Id. Ex. F at 75-80). Plaintiff also underwent a blood test on March 26, 2015, in connection with his treatment evaluation. (Id. at ¶ 74, Ex. F at 81, 127). On April 6, 2015, plaintiff was seen by an IFD consultant, who opined that plaintiff was a candidate for treatment. (Id. at ¶ 76, Ex. F at 131-32). On April 16, 2015, NP Jeavons met with plaintiff to discuss the specialist's recommendation, and immediately thereafter submitted an HCV Treatment Consult Request form to CMO Koenigsmann. (Id. at ¶ 66, Ex. F at 95, 101; Koenigsmann Decl. at ¶ 34, Ex. D at 2-4). The next day, CMO Koenigsmann approved plaintiff as a suitable candidate for treatment with Harvoni. (Koenigsmann Decl. at ¶¶ 36-37, Ex. D at 1). At the same time, CMO Koenigsmann noted that plaintiff had an early release date in June 2015 (less than twelve weeks later), and therefore required a plan for the continuity of his treatment upon release. (Id. at ¶ 40, Ex. D at 1; Ryerson Decl. Ex. F at 101). NP Jeavons notified plaintiff that he had been approved for Harvoni on April 20, 2015, and would begin treatment that week. (Ryerson Decl. ¶ 83, Ex. F at 102, 105). At the same time, DOCCS staff contacted the United States Marshals Service regarding plaintiff's continuity of care upon transfer into federal custody. (Koenigsmann Decl. Ex. D at 5-7; Ryerson Decl. Ex. F at 106-07). The federal marshals responded that plaintiff would be traveling to different facilities upon intake, thus it would not be feasible to maintain his treatment regimen upon initial transfer into federal custody. (Ryerson Decl. Ex. F at 107). After learning this information, defendant DOCCS Regional Medical Director David Dinello, M.D., determined that plaintiff should not begin treatment prior to his transfer to DOCCS custody, indicating that there was “no emergent need to rush treatment[,] so it [could] safely wait.” (Id.). This opinion was shared by defendant Regional Medical Director Susan Mueller, M.D. (Koenigsmann Decl. Ex. D at 5). On April 22, 2015, Plaintiff was notified that his HCV treatment was no longer commencing at Auburn C.F. (Ryerson Decl. Ex. F at 103). Plaintiff was released into federal custody in June 2015. In April 2017, plaintiff began a three-month course of HCV treatment with another drug, Zepatier. Since completing this course of treatment, plaintiff's HCV viral loads have remained undetectable. (Pl.’s Dep. at 154-55). C. Property Destruction/Retaliation Plaintiff alleges that when he arrived to Auburn C.F. in June 2013, he requested a program assignment in the law library by filing an application with the “law library supervisor,” defendant Correctional Officer (“CO”) Hesse. (SAC at ¶ 69). CO Hesse informed plaintiff that the application would be forwarded to the program committee chairman (“PCC”), however the PCC later informed plaintiff that he had not received the application. (Id.). Plaintiff returned to the law library and filed another application with CO Hesse. (Id.). Plaintiff alleges that this “scenario would repeat itself three times[,] with [CO] Hesse stating that the application was forwarded and the PCC stat[ing] that he had not received an application.” (Id. at ¶ 70). Plaintiff states that he ultimately filed a grievance concerning the situation. (Id.). At his deposition, plaintiff testified that CO Hesse used “scare tactics” in an attempt to get plaintiff to withdraw the grievance. (Pl.’s Dep. at 159). Ultimately, the PCC responded that plaintiff's law library application had been forwarded, but plaintiff had to pick another assignment. (SAC at ¶ 70). *6 CO Hesse allegedly told plaintiff that he “should not have filed the complaint and would never get a law library assignment.” (Id.). Plaintiff also alleges that, after filing the grievance, CO Hesse verbally harassed him in the law library. (Id. at ¶ 71). After exhausting his grievance with DOCCS, Plaintiff filed an Article 78 proceeding in state court regarding the program placement issue. (Pl.’s Dep. at 160-61). Plaintiff claims that after he filed the petition, CO Hesse told him “you don't know when to stop,” continued to harass plaintiff with increasing “tone and intensity,” and began calling plaintiff derogatory names to other prisoners. (SAC at ¶ 72). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 32 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 Two years later, in January 2015, plaintiff was transferred to the Auburn C.F. SHU. (Pl.’s Dep. at 165-66; Ryerson Decl. Ex. A at 4 (Dkt. No. 210-8) ). Pursuant to DOCCS policy, all inmate personal property entering the SHU must be processed, which included a search for contraband, and an inventory. (Declaration of Rick Gilfus (“Gilfus Decl.”) at ¶ 6). According to the plaintiff, three days after his transfer, CO Hesse approached him in the SHU and asked if plaintiff had received his property yet. 9 (Pl.’s Dep. at 164). Plaintiff answered “No,” and CO Hesse responded that he would “personally make sure that the plaintiff would get what he got coming, in an ominous tone.” (SAC at ¶ 73). Later that morning, plaintiff received his property and discovered that the bags had been opened outside of his presence, and that his legal work had been taken out of their envelopes and thrown into “total disarray.” (SAC at ¶¶ 74-75). Plaintiff also discovered that documents relative to his active legal cases were missing. (Id. at ¶ 75). It is undisputed that defendant CO Rick Gilfus, the property officer in the SHU where plaintiff was transferred, performed the initial review and search of plaintiff's property. (Pl.’s Dep. at 166; Gilfus Decl. at ¶ 8). Plaintiff alleges that when he asked about the condition of his property, CO Gilfus replied, “that's what happens when you piss people off in Auburn.” (SAC at ¶ 76). Plaintiff filed a grievance on or about January 1, 2015, specifically complaining about C.O. Gilfus's alleged tampering with and destruction of his legal documents in retaliation for plaintiff's “filing of a court action against staff here at [Auburn C.F.].” (Declaration of Cheryl Parmiter (“Parmiter Decl.”) (Dkt. No. 210-4) Ex. B at 5). Less than a month later, plaintiff was transferred to Southport C.F. Upon arrival, plaintiff discovered that his property had not been transported from Auburn C.F. with him, as he states it should have. (SAC at ¶¶ 78-79). Plaintiff alleges that his property did not arrive for another week, and even upon arrival some property was still missing. (Id. at ¶¶ 79-80). Plaintiff maintains that CO Gilfus was responsible for the packing and shipping of property belonging to a prisoner transferred out of the Auburn C.F. SHU. (Id. at ¶ 80). Plaintiff also alleges that defendant Sergeant (“Sgt.”) Donnelly failed to train and supervise CO Gilfus with respect to the handling of his property. (Pl.’s Dep. at 173-74). The defendants dispute plaintiff's contentions surrounding his retaliation claim. CO Gilfus concedes that, per his duties as a SHU property officer, he removed plaintiff's property from its bags and searched it for contraband upon transfer. He asserts that his actions were in complete compliance with DOCCS directives. (Gilfus Decl. at ¶¶ 2, 6,8-10 (Dkt. No. 210- 14); Haimson Aff. Ex. B at 8). After searching plaintiff's property, CO Gilfus “inventoried it and neatly placed it in several bins for plaintiff's review.” (Gilfus Decl. at ¶ 10). Plaintiff was then given the opportunity to review his property, and never complained to CO Gilfus that any of his legal paperwork was missing. (Id. at ¶ 12). CO Gilfus also maintains that CO Hesse had no involvement in processing plaintiff's property, nor did CO Gilfus have any communication with CO Hesse about plaintiff or his property. (Id. at ¶¶ 13-14). At the time, CO Gilfus was not aware of plaintiff's grievance and/or legal history with CO Hesse. (Id. at ¶ 15). DISCUSSION IV. Medical Deliberate Indifference A. Legal Standards *7 In order to state a claim based on constitutionally inadequate medical treatment, the plaintiff must allege “acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). There are two elements to the deliberate indifference standard. Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). The first element is objective and measures the severity of the deprivation, while the second element is subjective and ensures that the defendant acted with a sufficiently culpable state of mind. Id. at 184 (citing inter alia Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998)). 1. Objective Element There is a two part inquiry to determine whether an alleged deprivation is “objectively serious.” Benjamin v. Pillai, 794 F. App'x 8, 11 (2d Cir. 2019) (citing Salahuddin v. Goord, 467 F.3d 263, 279-80 (2d Cir. 2006)). The first question is whether the plaintiff was actually deprived of adequate medical care. Id. Prison officials who act “reasonably” in response to the inmates health risk will not be found liable under the Eighth Amendment because the official's duty is only to provide “reasonable care.” Salahuddin, 467 F.3d at 279-80 (citing Farmer v. Brennan, 511 U.S. 825, 844-47 (1994)). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 33 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 The second part of the objective test asks whether the purported inadequacy in the medical care is “sufficiently serious.” Benjamin, 794 F. App'x at 11 (citing Salahuddin, 467 F.3d at 280). The court must examine how the care was inadequate and what harm the inadequacy caused or will likely cause the plaintiff. Salahuddin, 467 F.3d at 280 (citing Helling v. McKinney, 509 U.S. 25, 32-33 (1993)). If the “unreasonable care” consists of a failure to provide any treatment, then the court examines whether the inmate's condition itself is “sufficiently serious.” Id. (citing Smith, 316 F.3d at 185-86). However, in cases where the inadequacy is in the medical treatment that was actually afforded to the inmate, the inquiry is narrower. Id. If the issue is an unreasonable delay or interruption of ongoing treatment, then the “seriousness” inquiry focuses on the challenged delay itself, rather than on the underlying condition alone. Benjamin, 794 F. App'x at 11. The court in Benjamin reiterated that although courts speak of a “serious medical condition” as the basis for a constitutional claim, the seriousness of the condition is only one factor in determining whether the deprivation of adequate medical care is sufficiently serious to establish constitutional liability. Benjamin, 794 F. App'x at 11 (citing Smith, 316 F.3d at 185). 2. Subjective Element The second element is subjective and asks whether the official acted with “a sufficiently culpable state of mind.” Benjamin, 794 F. App'x at 11 (citing Hathaway v. Coughlin, 511 U.S. 825, 553 (2d Cir. 1996)). In order to meet the second element, plaintiff must demonstrate more than a “negligent” failure to provide adequate medical care. Salahuddin, 467 F.3d at 280 (citing Farmer, 511 U.S. at 835-37). Instead, plaintiff must show that the defendant was “deliberately indifferent” to that serious medical condition, that the charged official possessed “ ‘a state of mind that is the equivalent of criminal recklessness.’ ” Benjamin, 794 F. App'x at 11 (quoting Hathaway, 99 F.3d at 553). In order to rise to the level of deliberate indifference, the defendant must have known of and disregarded an excessive risk to the inmate's health or safety. Abreu v. Lipka, 778 F. App'x 28, 32 (2d Cir. 2019) (quoting Smith, 316 F.3d at 184). The defendant must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he or she must draw that inference. Chance, 143 F.3d at 702 (quoting Farmer, 511 U.S. at 837). The defendant must be subjectively aware that his or her conduct creates the risk; however, the defendant may introduce proof that he or she knew the underlying facts, but believed that the risk to which the facts gave rise was “insubstantial or non-existent.” Farmer, 511 U.S. at 844. The court stated in Salahuddin that the defendant's belief that his conduct posed no risk of serious harm “need not be sound so long as it is sincere,” and “even if objectively unreasonable, a defendant's mental state may be nonculpable.” Salahuddin, 467 F.3d at 281. *8 Additionally, a plaintiff's disagreement with prescribed treatment does not rise to the level of a constitutional claim. Riddick v. Maurer, 730 F. App'x 34, 38 (2d Cir. 2018) (quoting Chance, 143 F.3d at 703). Prison officials have broad discretion in determining the nature and character of medical treatment afforded to inmates. Sonds v. St. Barnabas Hosp. Correctional Health Services, 151 F. Supp. 2d 303, 311 (S.D.N.Y. 2001) (citations omitted). An inmate does not have the right to treatment of his choice. Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986). Because plaintiff might have preferred an alternative treatment or believes that he did not get the medical attention he desired does not rise to the level of a constitutional violation. Id. Disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of their intervention implicate medical judgments and not the Eighth Amendment. Sonds, 151 F. Supp. 2d at 312 (citing Estelle v. Gamble, 429 U.S. at 107). Even if those medical judgments amount to negligence or malpractice, malpractice does not become a constitutional violation simply because the plaintiff is an inmate. Id.; see also Daniels v. Williams, 474 U.S. 327, 332 (1986) (noting that negligence is not actionable under § 1983). Thus, any claims of malpractice, or disagreement with treatment are not actionable under § 1983. B. Application 1. Triple Combination Therapy Plaintiff claims that NP Ryerson and Nurse Ashley violated his constitutional rights by “summarily discontinuing” his triple combination therapy treatment at Auburn C.F., despite a purported recommendation that he continue treatment. Defendants argue that plaintiff's claim fails for the following reasons: (1) plaintiff had no serious medical need for triple combination therapy treatment, (2) plaintiff's claim amounts to no more than a disagreement over the proper course of Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 34 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 treatment, (3) defendants lacked a sufficiently culpable state of mind, and (4) defendants are entitled to qualified immunity. For the following reasons, the court agrees that plaintiff's cause of action with respect to the discontinuance of triple combination therapy should be dismissed. As to the first prong of deliberate indifference, defendants have established that plaintiff lacked a serious medical need for triple combination therapy, a treatment for which he was diagnostically considered an unsuitable candidate. It is undisputed that the continuation of plaintiff's treatment was not medically appropriate under DOCCS's HCV guidelines. These guidelines, based upon national medical standards and recommendations, reflect the various circumstances under which HCV treatment should be suspended and/or considered treatment failure. For example, the guidelines recommend that a provider consider discontinuing HCV treatment anytime between 12 and 24 weeks in the event a patient has failed to demonstrate at least a two log reduction in viral loads from their baseline blood work. The guidelines also identify the futility of using triple combination therapy on a patient with a viral load equal to or greater than 1,000 IU/mL after four or twelve weeks of treatment. Finally, the guidelines specify that for a patient with genotype one virus, such as plaintiff, where the virus is still detectable after 12 weeks, without at least a two log drop in viral loads, treatment should be stopped altogether. (Ryerson Decl. ¶¶ 37-39). Plaintiff's laboratory results after twelve weeks of triple combination therapy evidenced treatment failure under each of the aforementioned guidelines. (Id. ¶¶ 43-47, Ex. E at 37, 43, 64, 92). Plaintiff concedes that the treatment did not satisfactorily reduce his viral loads, and that his blood work evidenced treatment failure under DOCCS guidelines. (SAC at ¶ 41). Considering the ineffectiveness of plaintiff's treatment, the slow rate of the disease's progression, and the continued risk inherent in exposing plaintiff to HCV treatment and its accompanying side effects, the court finds that defendants have met their burden and established that plaintiff did not have a serious medical need for continued triple combination therapy, and that discontinuing plaintiff's treatment was, at the very least, medically appropriate. *9 Defendants have also established that they did not entertain the requisite state of mind in order to attach liability under the Eighth Amendment. Assuming that NP Ryerson and Nurse Ashley are properly named defendants in this cause of action, 10 the record reflects that neither had reason to believe that the discontinuation of plaintiff's triple combination therapy, as recommended per DOCCS treatment guidelines, would subject him to any serious harm. Admittedly, the courts in this district have identified limited circumstances under which a medical provider may be found to have acted with a sufficiently culpable state of mind, despite following established treatment guidelines. See, e.g., Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005) (a jury could reasonably find that the defendants acted with a sufficiently culpable state of mind “by reflexively following the Guideline's substance abuse policy in the face of the unanimous, express, and repeated recommendations of plaintiff's treating physicians ... to depart from the Guideline and approve [HCV treatment]); Hatzfeld v. Eagen, No. 9:08–CV–283 (LES/DRH), 2010 WL 5579883, at * 12-13 (N.D.N.Y. Dec. 10, 2010) (finding question of fact as to whether there was deliberate indifference by the defendants in conditioning plaintiffs HCV treatment on compliance with DOCS policy requiring inmates to first participate in substance abuse treatment program). However, the facts in this case differ dramatically, as the overwhelming objective medical evidence of record indicates that discontinuing triple combination therapy was the medically appropriate treatment decision. Unlike the previously cited cases, there is no evidence here that the defendants mechanically relied on other aspects of the DOCCS guidelines that were less clearly correlated with treatment success in making their determination, i.e. plaintiff's participation in an ancillary program. See Watson v. Wright, No. 9:08-CV-62 (NAM/ ATB), 2011 WL 4527789, at *10 (N.D.N.Y. Aug. 4, 2011), report and recommendation adopted, 2011 WL 4528931 (N.D.N.Y. Sept. 28, 2011) (“To the extent other cases from this Circuit have concluded that application of the DOCS HCV Guidelines could constitute an Eighth Amendment violation, they have addressed reflexive or mechanical reliance on other aspects of the [guidelines] that are less clearly correlated with treatment success.”). Here, the record reflects that the medical staff's determination to discontinue treatment was appropriately and objectively rendered. NP Ryerson evaluated plaintiff's blood work and medical records upon transfer, and personally met with plaintiff. Her evaluation of the medical data revealed that plaintiff's twelve weeks of treatment with triple combination therapy at Southport C.F. had failed. Considering the evidence submitted by the moving parties, the defendants have shown that plaintiff's serious medical needs were not recklessly ignored, and the decision to discontinue his treatment was supported by legitimate reasons. See Jackson v. Sheehan, No. 16-CV-6710, 2021 WL 795313, at *8 (W.D.N.Y. Mar. 2, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 35 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 2021) (summary judgment appropriate where denial of HCV triple drug therapy was “supported by legitimate reasons”) (quoting Brown v. Cade, 698 F. App'x 33, 34 (2d Cir. 2017)). Plaintiff has failed to raise a question of fact in order to defeat summary judgment on this issue. Even accepting plaintiff's argument that there were differing opinions between plaintiff's prior medical provider at Southport C.F. and Auburn C.F. as to whether his HCV treatment should proceed, 11 “the law is clear that a difference of opinion ... even among medical professionals themselves, as to the appropriate course of medical treatment does not in and of itself amount to deliberate indifference.” Williams v. M.C.C. Institution, 97 Civ. 5352, 1999 WL 179604, at *7 (S.D.N.Y. Mar. 31, 1999) (citing, inter alia, Ross v. Kelly, 784 F. Supp. 35, 45 (Feb. 5, 1992)); see also Gillespie v. New York State Dept. of Correctional Services, 9:08–CV–1339 (TJM/ATB), 2010 WL 1006634, at *6, (N.D.N.Y. Feb. 22, 2010) (the fact that other physicians may have previously followed a different course of treatment does not render the actions of the prison doctor “deliberate indifference”), report and recommendation adopted, 2010 WL 1006643 (N.D.N.Y. Mar 19, 2010). Plaintiff's allegations do not create a material issue of fact supporting his claim that NP Ryerson and/or Nurse Ashley provided unreasonable care or acted with deliberate indifference to his medical needs. Accordingly, this court recommends that defendants’ summary judgment motion be granted as to this cause of action. 2. Harvoni Treatment *10 Plaintiff alleges that defendants Koenigsmann, Mueller, Dinello, Jones, Jeavons, Coryer, Ryerson, Ashley, and Gardner 12 violated his constitutional rights by delaying the evaluation for, and ultimately denying treatment with, the HCV drug Harvoni. The defendants argue that this cause of action should be dismissed on summary judgment because (1) plaintiff has failed to establish the personal involvement of several defendants, (2) plaintiff had no serious medical need for treatment with Harvoni, (3) plaintiff's claim amounts to no more than a disagreement over the proper course of treatment, (4) plaintiff has not demonstrated the defendants’ culpable state of mind, and (5) defendants are entitled to qualified immunity. For the following reasons, the court agrees that plaintiff's deliberate indifference claim should be dismissed. Plaintiff's cause of action relative to Harvoni treatment is more properly addressed as two individual claims of deliberate indifference. To the extent plaintiff challenges an alleged delay in his evaluation for treatment, where an inmate alleges a delay in treatment—rather than an absolute denial of treatment—“it is appropriate to focus on the challenged delay ... in treatment rather than the prisoner's underlying medical condition alone in analyzing whether the alleged deprivation is, in ‘objective terms, sufficiently serious’ to support an Eighth Amendment claim.” Ray v. Zamilus, No. 13 Civ. 2201, 2017 WL 4329722, at *9 (S.D.N.Y. Sept. 27, 2017) (quoting Smith, 316 F.3d at 184). “[T]he case law clearly establishes that the delay in treatment does not become a constitutional violation merely because the underlying medical condition, here, Hepatitis C, is indisputably a serious one.” DiChiara v. Wright, No. 06-CV-6123, 2011 WL 1303867, at *7 (E.D.N.Y. Mar. 31, 2011). “A defendant's delay in treating an ordinarily insignificant medical condition can become a constitutional violation if the condition worsens and creates a substantial risk of injury. Conversely, delay in treating a life-threatening condition may not violate the Eighth Amendment if the lapse does not cause any further harm beyond that which would occur even with complete medical attention.” Graham v. Wright, No. 01 Civ. 9613, 2004 WL 1794503, at *4 (S.D.N.Y. Aug. 9, 2004) (quotations omitted) (citing Smith, 316 F.3d at 186). 13 Furthermore, the court is reminded that “a prisoner is not entitled to the best [including the most efficient] healthcare possible[,] or even to a choice among available treatment modalities; instead, the Constitution entitles a prisoner only to reasonable measures to meet a substantial risk of serious harm.” Diachiara v. Pataki, No. 106-CV-6123, 2007 WL 749742, at *3 (E.D.N.Y. Mar. 7, 2007) (alterations not in original) (citing Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997)); see also Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986) (“The Constitution does not command that inmates be given medical attention that judges would wish to have for themselves.”). A delay in medical treatment does not always necessarily invoke the Eighth Amendment, and the Second Circuit has reserved such a classification for when “officials deliberately delayed care as a form of punishment; ignored a ‘life-threatening and fast-degenerating’ condition for three days; or delayed major surgery for over two years.” Sims v. City of New York, 788 F. App'x 62, 64 (2d Cir. 2019) (quoting inter alia Demata v. N.Y. State Corr. Dep't of Health Servs., 198 F.3d 233 (2d Cir. 1999)); see also Hathaway v. Coughlin, 841 F.2d 48, 50-51 (2d Cir. 1988) (officials delayed arranging corrective hip surgery for over two years); Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 36 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 Archer v. Dutcher, 733 F.2d 14, 16-17 (2d Cir. 1984) (officials deliberately delayed care as form of punishment for violations of discipline code or other invalid reasons). *11 Considering the aforementioned, this court does not find that the less than four-month period between plaintiff communicating to NP Jeavons his request for treatment evaluation, and CMO Koenigsmann's approval of said treatment, constituted a cognizable delay in care under the Eighth Amendment. Notably, plaintiff consulted with an IFD consultant in August 2014 and voluntarily postponed his HCV treatment in light of Harvoni's 14 anticipated approval for use by the FDA. (Ryerson Ex. F at 18). The IFD consultant apparently approved of this plan, noting that plaintiff “feels well, [with] some fatigue. Reports chronic itch.” (Id.). It was recommended that plaintiff follow up in three months. (Id.). Harvoni attained FDA approval in October 2014, and became available as an HCV treatment in DOCCS facilities by November 2014. (Koenigsmann Decl. at ¶¶ 26-31). The record otherwise reflects that plaintiff was being evaluated for treatment during the subsequent period in question. After plaintiff wrote to NP Jeavons in January 15 2015 requesting an appointment “to discuss [his] treatment with the new Hep C drug, Harvoni,” NP Jeavons responded that she had scheduled an appointment, and subsequently met with plaintiff at the beginning of February 2015 to discuss his treatment plan. (Ryerson Decl. Ex. F at 33, 54). Although plaintiff was transferred to a different facility soon thereafter, he still presented for the requisite laboratory testing relative to his treatment evaluation. (Ryerson Decl. ¶¶ 69-70, Ex. F at 80-84). Plaintiff was transferred back to Auburn C.F. on March 9, 2015, where he underwent further pre-treatment testing. (Id. ¶ 74, Ex. F at 81, 127). It appears that there was a waiting period for some of the test results, before plaintiff could proceed with the evaluation process. (Id. Ex. F at 78, 80, 90, 94). In February, plaintiff met with the IFD consultant and in April, upon review of the consultant's recommendation and after meeting with plaintiff, NP Jeavon's submitted a consult request form to CMO Koenigsmann for treatment approval. CMO Koenigsmann approved plaintiff for treatment with Harvoni the following day. (Ryerson Decl. Ex. F at 101). On these facts, no reasonable trier of fact could conclude that plaintiff's treatment evaluation was delayed to the extent of an Eighth Amendment violation. Plaintiff's contention that his transfer from Auburn C.F. to Southport C.F., then back to Auburn C.F. a month later, delayed his treatment to an actionable extent is unpersuasive. In support of his position that he was improperly denied a medical hold at both facilities, plaintiff has submitted what he purports to be an excerpt from the DOCCS “medical hold policy,” dated March 29, 2011, which states that an HCV patient will remain on facility medical hold if the patient “is undergoing an initial work up for treatment consideration under the auspices of a specialist.” (Pl.’s Opposition Ex. K). Plaintiff, however, was not undergoing an initial work up for HCV treatment consideration until years later, by which time it appears the relevant policy only required a facility medical hold for “patients undergoing treatment for [HCV] ... during the first five weeks of therapy.” (Ryerson Decl. Ex. C at 13, Ex. D at 15). In any event, the record reflects that denying plaintiff a medical hold did not prevent DOCCS from proceeding with plaintiff's initial work up for HCV treatment at both facilities, although, perhaps, not as quickly as plaintiff preferred. *12 Furthermore, plaintiff has not introduced any verifying medical evidence that his HCV worsened as a result of the alleged delay in treatment, or that the ‘delay’ presented a risk that the eventual treatment would be less effective. Plaintiff's medical records between December 2014 and April 2015 do not suggest that he was suffering from any significant exacerbation of HCV symptoms, and plaintiff has not advanced any evidence contradicting Dr. Dinello, Dr. Mueller, and CMO Koenigsmann's collective opinion that plaintiff's condition was stable, and there was no urgent need to rush treatment. 16 Moreover, the undisputed evidence shows that once plaintiff received treatment in federal custody, the virus was eradicated and remains so. Accordingly, plaintiff has not raised a genuine issue regarding the objective prong of this claim, as there is no evidence that the purported delay in treatment approval was “substantially serious.” See Motta v. Wright, No. 9:06-CV-1047(NAM/ GJD), 2009 WL 1437589, at *16 (N.D.N.Y. May 20, 2009) (finding alleged three-and-a-half year delay in HCV treatment did not satisfy objective factor of Eighth Amendment analysis where defendants presented evidence that delay was not “substantially serious,” including evidence of the slow progression of HCV and the minimal effect of the delay on plaintiff's condition). Even assuming that the alleged delay in evaluating plaintiff for HCV treatment caused him objective harm, plaintiff has not come forward with evidence satisfying the mental prong of his Eighth Amendment medical indifference claim, i.e. evidence raising a material issue of fact as to whether any of the named defendants acted with deliberate indifference to his Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 37 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 medical needs. Although plaintiff was aggressively pursuing treatment, and frequently communicated his requests to various facility staff between December 2014 and April 2015, the record does not indicate that the defendants ignored, or left untreated, any complaints of acute pain or symptom exacerbation relative to plaintiff's HCV during this time. Nor does the record reflect that the defendants were turning a blind eye to plaintiff's HCV condition. As previously noted, plaintiff was being followed for an initial work-up relative to Harvoni treatment at both Auburn C.F. and Southport C.F., and seen in sick call on a regular basis. At its core, plaintiff's claim is that his evaluation for Harvoni treatment and follow-up consultation with the IFD consultant did not occur fast enough. Nevertheless, on the facts herein his dissatisfaction does not amount to deliberate indifference. See Coke v. Medical, Dep't of Corr. & Cmty. Supervision, No. 17 Civ. 0866, 2018 WL 2041388, at *5 (S.D.N.Y. Apr. 30, 2018) (no deliberate indifference for alleged 13-month delay of referral to pain management where plaintiff was being treated and evaluated during the period in question, and ultimately was seen by a pain specialist); Patterson v. Quiros, No. 3:19-CV-147, 2021 WL 681144, at *10 (D. Conn. Feb. 22, 2021) (“Disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, or the timing of their intervention are not generally adequate grounds for an Eighth Amendment claim[.]”) (emphasis added) (citations omitted). Because plaintiff has failed to raise a material question of fact suggesting that any of the defendants deliberately delayed medical care to punish him, or ignored any complaints of worsening symptoms, his claim that defendants delayed approving him for Harvoni treatment is insufficient to satisfy the deliberate indifference standard. See Pabon v. Wright, No. 99 Civ. 2196, 2004 WL 628784, at *8 (S.D.N.Y. Mar. 29, 2004), aff'd, 459 F.3d 241 (2d Cir. 2006) (evidence as to minimal delays in defendant's treatment of Hepatitis C suggests at most several acts of negligence, insufficient to support an Eighth Amendment violation). *13 The second component of plaintiff's Eighth Amendment claim alleges that the defendants were deliberately indifferent to his medical needs when they declined to treat him with Harvoni at Auburn C.F., despite CMO Koenigsmann's initial approval. Although plaintiff has named a plethora of defendants in this claim, it is clear that they were not all personally involved in the decision to withhold treatment in April 2015, and to this end may not be held liable for the alleged constitutional violation. The Second Circuit recently clarified the standard for personal involvement of individuals in a § 1983 action. See Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020). Pursuant to the Supreme Court's decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Second Circuit in Tangreti made clear that in order to attach liability to an individual, regardless of supervisory status, a plaintiff must plead and prove “that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676 .... “The factors necessary to establish a [§ 1983] violation will vary with the constitutional provision at issue” because the elements of different constitutional violations vary. Id. The violation must be established against the supervisory official directly. Id. (quoting Iqbal, 556 U.S. at 676). Quoting a Tenth Circuit case, the Tangreti court stated that “ ‘after Iqbal, [a p]laintiff can no longer succeed on a § 1983 claim against [a d]efendant by showing that as a supervisor he behaved knowingly or with deliberate indifference that a constitutional violation would occur at the hands of his subordinates, unless that is the same state of mind required for the constitutional deprivation he alleges.’ ” Id. (alterations in original) (quoting Dodds v. Richardson, 614 F.3d 1185, 1204 (10th Cir. 2010) (internal quotation marks omitted) (emphasis added, other citations omitted). The supervisor must have committed the violation him or herself, not by the supervision of others who committed the violation. Id. Likewise, the supervisor must personally display the requisite state of mind, depending on the violation at issue. Id. Here, the alleged violation at issue was withholding HCV treatment in April 2015. Because it is undisputed that non-medical supervisory officials Deputy Superintendent Jones and Acting Deputy Superintendent Gardner had no medical background or training, no authority with respect to plaintiff's medical care and treatment, and no reason to distrust the competence of the medical staff charged with treating plaintiff, plaintiff has not sufficiently established their personal involvement in order to withstand summary judgment. See Jackson v. Sheehan, No. 16-CV-6710, 2021 WL 795313, at *5 (W.D.N.Y. Mar. 2, 2021) (“[S]upervisory officials are generally permitted to rely on the opinions of medical staff concerning the correct course of treatment.”); Battle v. Recktenwald, No. 14-CV-2738, 2016 WL 698145, at *11 (S.D.N.Y. Feb. 19, 2016). Plaintiff also attempts to attach liability to Auburn C.F. medical defendants NP Ryerson, Nurse Administrator Coryer, Nurse Ashley, and NP Jeavons. The record, however, is devoid of any evidence that these defendants had the authority Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 38 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 to revoke and/or reinstate plaintiff's Harvoni treatment once approved by CMO Koenigsmann. In fact, to the extent NP Jeavons submitted plaintiff's Harvoni treatment application and acquired approval from her supervisor, it appears that she performed her function with respect to plaintiff's complaint to the limit of her position, and there is no evidence suggesting that NP Jeavons or any other Auburn C.F. medical staff had the authority to deviate from the subsequent decision to withhold treatment made by DOCCS central office staff. Jackson v. Sheehan, 2021 WL 795313, at *7 (no genuine issue of material fact regarding personal involvement where defendants, “having performed their functions with respect to plaintiff's complaint to the limits of their authority, ‘had no further responsibility to resolve it.’ ”) (quoting Tangreti, 983 F.3d at 620 n. 7). *14 Based on the record before this court, the only defendants who could plausibly be held liable for the decision to withhold the approved treatment in April 2015 were CMO Koenigsmann and DOCCS Regional Medical Directors Mueller and Dinello. Notwithstanding these defendants’ personal involvement, however, plaintiff has failed to raise a material question of fact as to whether the determination not to treat plaintiff at Auburn C.F. constituted a violation of his constitutional rights. As previously discussed, plaintiff has failed to show that his condition was such that he faced a substantial risk of serious harm if untreated, much less that his infection was causing him to experience any serious symptoms or ill effects. The overwhelming evidence has established plaintiff's voluntary decision to delay treatment, the absence of any exacerbated HCV symptoms during the period in question, and a lack of proof refuting Dr. Dinello's professional opinion, as concurred with by Dr. Mueller and CMO Koenigsmann, that there was “no emergent need to rush treatment,” and it could “safely wait” to commence until plaintiff was in federal custody. (Ryerson Decl. Ex. F at 107; Koenigsmann Decl. at ¶¶ 43-46, Ex. D at 5). Plaintiff has also failed to raise a material question of fact with respect to the mental prong of his deliberate indifference claim, as the record would not permit a reasonable trier of fact to find that these defendants knew of and disregarded an excessive risk to plaintiff's health when they chose to defer plaintiff's treatment. After CMO Koenigsmann approved treatment, DOCCS staff commenced establishing a continuity of care plan for when plaintiff was transferred into federal custody. (Ryerson Decl. Ex. F at 102, 107-08). It eventually became clear that the federal marshals would be unable to maintain plaintiff's proposed treatment regimen immediately upon transfer. However, there is no indication that the defendants previously knew, or had reason to know, that plaintiff would not be able to continue his treatment regimen upon transfer into federal custody. (Koenigsmann Decl. at ¶¶ 42, 47). Moreover, the defendants had no authority over the federal Bureau of Prisons’ (“BOP”) provision of care to plaintiff, including treatment determinations. Thus, the defendants were left with the option to either commence a treatment regimen they knew would be discontinued short of completion, and take on the risks involved therein; or to defer treatment and transfer plaintiff's medical information to the BOP, with the understanding that the federal government also provided HCV treatment to eligible inmates in its custody. (Koenigsmann Decl. at ¶¶ 44, 47). The evidence reflects that the defendants chose the former based on their professional medical opinion and in consideration of the risks to plaintiff's health. In the absence of any evidence plausibly suggesting an otherwise invalid reason for denying plaintiff treatment under these circumstances, plaintiff has failed to raise a material question of fact as to the mental prong of his deliberate indifference claim. See Williams v. Sykes, No. 9:17-CV-990(TJM/ATB), 2019 WL 2374116, at *5 (N.D.N.Y. May 10, 2019), report and recommendation adopted, 2019 WL 2369882 (N.D.N.Y. June 5, 2019) (granting summary judgment where there was “simply no evidence that [defendant] intentionally deprived plaintiff of adequate medical care,” nor evidence support a finding that the defendant “acted recklessly and ‘knew or should have known’ that her acts or omissions ‘posed an excessive risk to [plaintiff's] health or safety.’ ”) (citations omitted); Padilla v. Bobb-Diallo, No. 9:17-CV-1150 (MAD/TWD), 2020 WL 3038135, at *9 (N.D.N.Y. Jan. 13, 2020), report and recommendation adopted, 2020 WL 1025159 (N.D.N.Y. Mar. 3, 2020) (plaintiff did not meet the requirements of the mens rea prong where there was no evidence of ‘conscious delay’ or failure to treat an inmate's serious medical condition ‘as punishment for other invalid reasons’) (citations omitted). V. Retaliation A. Legal Standards To state a First Amendment claim of retaliation, an inmate must allege facts plausibly suggesting that (1) the speech or conduct at issue was protected, (2) the defendant took adverse action against the plaintiff, and (3) there was a causal connection between the protected conduct and the adverse action. Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014)(citations omitted). The court must keep in mind that claims of retaliation are “easily fabricated” and “pose a Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 39 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 substantial risk of unwarranted judicial intrusion into matters of general prison administration.” Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013) (quoting Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)). In other words, we must examine prisoners’ claims of retaliation with “skepticism and particular care.” Rivera v. Goord, 119 F. Supp 2d 327, 339 (S.D.N.Y. 2000) (quoting Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), abrogated on other grounds, Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020)). Accordingly, a First Amendment retaliation claim must be supported by “specific and detailed factual allegations,” and not stated in “wholly conclusory terms.” Dolan v. Connolly, 794 F.3d 290, 295 (2d. Cir. 2015) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 (2002)). *15 In order to satisfy the final prong, “the causal connection must be sufficient to support an inference that the protected conduct played a substantial part in the adverse action.” Cruz v. Grosso, No. 9:13-CV-30 (FJS/TWD), 2014 WL 2176256, at *6 (N.D.N.Y. May 23, 2014) (citing inter alia Colon, 58 F.3d at 873). Several factors may be considered in determining whether a causal connection exists between the plaintiff's protected activity and a prison official's actions, including temporal proximity between the protected activity and the alleged retaliatory act, and statements by the defendant concerning his or her motivation. 17 Cruz, 2014 WL 2176256, at *6 (citing Colon, 58 F.3d at 872-73). However, temporal proximity alone is not enough to establish a causal connection. The Second Circuit has held that where “timing is the only basis for a claim of retaliation ... an inference of retaliation does not arise.” Thomas v. Waugh, No. 9:13-CV-0321 (MAD/TWD), 2015 WL 5750945, at *15 (N.D.N.Y. Sept. 30, 2015) (quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001). B. Application 1. Defendants Ashley, Ryerson and Jeavons Plaintiff alleges that Nurse Ashley, NP Ryerson, and NP Jeavons intentionally delayed plaintiff's evaluation for Harvoni treatment in retaliation for plaintiff filing a grievance against Ashley and Ryerson concerning the discontinuation of his triple combination therapy in 2013. Nurse Ashley and NP Ryerson argue that the retaliation claim should be dismissed as against them, because plaintiff has failed to sufficiently identify any adverse action attributable to them. They also argue that plaintiff has failed to establish a causal connection between any protected speech and the alleged actions of NP Ryerson and Nurse Ashley. Along with similar arguments, NP Jeavons also contends that plaintiff has failed to exhaust his administrative remedies with respect to this claim – an argument disputed by both plaintiff and the Wilson Elser defendants. Assuming, without deciding, that plaintiff has sufficiently exhausted his administrative remedies concerning the underlying grievance, the court considers whether plaintiff has raised a question of material fact as to the elements of his retaliation claim. To begin, it is well settled that the filing of a grievance is constitutionally protected activity in the context of retaliation, thus plaintiff has presented sufficient evidence that his 2013 grievance regarding the discontinuation of triple combination therapy constituted protected speech. See Flynn v. Ward, No. 15-CV-1028 (TJM/CFH), 2018 WL 3195095, at *8 (N.D.N.Y. June 7, 2018) (“It is well-settled that the filing of a grievance constitutes protected speech under the First Amendment” for purposes of a retaliation claim) (citing Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)). Plaintiff's protected conduct notwithstanding, he has failed to raise a triable issue of material fact as to the remaining elements of his retaliation claim, and dismissal is warranted. Plaintiff has failed to produce sufficient evidence identifying any discernable, adverse actions taken against him by the defendants. Although the courts in this district have found that “denial of medical evaluation, treatment, and adequate pain medication can suffice to establish adverse action under a First Amendment retaliation analysis[,]” Abreu v. Farley, No. 6:11-CV-06251, 2019 WL 1230778, at *22 (W.D.N.Y. Mar. 15, 2019), in the context of a summary judgment motion “a pro se party's bald assertion, unsupported by evidence, is not sufficient[,]” and the plaintiff must present some evidence suggesting that the defendants took adverse action against him. Cole v. Artuz, No. 93 Civ. 5981, 1999 WL 983876, at *3 (S.D.N.Y. Oct. 28, 1999) (citing Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)) (internal quotations and citations omitted). *16 Plaintiff alleges, generally, that NP Ryerson, Nurse Ashley, and NP Jeavons intentionally delayed the process by which he was evaluated for treatment at Auburn C.F. Defendants, however, have produced evidence indicating that between January and April 2015, plaintiff's request for treatment was acknowledged by NP Jeavons and other DOCCS medical staff, and plaintiff underwent various tests Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 40 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 in connection with his treatment evaluation. NP Jeavons met with him while managing his initial work-up for treatment, and also scheduled plaintiff for a consultation with IFD. (Ryerson Decl. Ex. F at 127, 131-32). With respect to Nurse Ashley, the record indicates that she met with plaintiff on January 20, 2015 and discussed the status of his HCV treatment. (Id. Ex. F at 41). She referred plaintiff's requests regarding treatment to his primary care provider, and soon thereafter NP Jeavons communicated to plaintiff that he was scheduled to see her for further discussion. Plaintiff also met with Nurse Ashley on several occasions after he was transferred back to Auburn C.F., for the purpose of executing paperwork relevant to his pending HCV treatment. (Id. Ex. F at 69, 79, 81, 99). Upon CMO Koenigsmann's approval, Nurse Ashley commenced inquiry into a continuity of care plan for plaintiff upon transfer to federal custody. (Id. Ex. F at 106-08). NP Ryerson has affirmed that she had no personal involvement in handling plaintiff's request for HCV treatment with Harvoni or evaluating plaintiff for treatment with the same. (Ryerson Decl. at ¶ 91). In light of the aforementioned evidence suggesting the absence of any adverse actions on the part of defendants, plaintiff's conclusory, unsupported allegations of adverse action fail to create a question of fact for purposes of summary judgment. See Hare v. Hayden, No. 09 Civ. 3135, 2011 WL 1453789, at *3 (S.D.N.Y. Apr. 14, 2011) (“Conclusory allegations of retaliation are not sufficient ....”) (citation omitted). Even if plaintiff had established a material question of fact as to the defendant's alleged adverse action, the court finds that no reasonable jury would conclude there was an adequate causal connection between plaintiff's 2013 grievance and the circumstances surrounding his evaluation for Harvoni treatment. Plaintiff filed a grievance against defendants Ryerson and Ashley on or about June 27, 2013, complaining about the discontinuance of his triple combination therapy. The adverse action alleged by plaintiff did not take place until well over a year later. This time period is longer than courts in this circuit find sufficient for an inference of retaliation. See Chang v. Safe Horizons, 254 Fed. App'x 838, 839 (2d Cir. 2007) (the adverse act occurred “one year after her complaint for discrimination, thus undermining any causal nexus based on temporal proximity”); Burkybile v. Bd. of Educ., 411 F.3d 306, 314 (2d Cir. 2005) (finding no causal connection when “more than a year passed” between the protected speech and the adverse action). In the absence of any circumstantial or direct evidence otherwise plausibly suggesting a retaliatory animus by the defendants, plaintiff's allegations of retaliation are “mere conclusory allegations” that “cannot by themselves create a genuine issue of material fact” to overcome summary judgment. Richards-Byers v. New York City Dep't of Fin., 449 F. App'x 55, 57 (2d Cir. 2011) (citation omitted). This is especially true when considering NP Jeavons alleged culpability, in light of the fact that she was not named in, and had no involvement with, the circumstances underlying plaintiff's 2013 grievance. In this circuit, courts have regularly dismissed claims that a defendant has retaliated for complaints against a third party. See, e.g., Hare v. Hayden, 09 Civ. 3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011) (“As a general matter, it is difficult to establish one defendant's retaliation for complaints against another defendant.” (citing Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009)) (dismissing retaliation claim against a corrections officer when only alleged basis for retaliation was complaint about an incident involving another corrections officer); Roseboro v. Gillespie, 791 F. Supp. 2d 353, 369 (S.D.N.Y. May 24, 2011) (plaintiff failed to provide any basis to believe that a corrections counselor would retaliate for a grievance that she was not personally named in). Here, plaintiff provides no basis for NP Jeavons's alleged retaliation for the 2013 grievance against Ryerson and Ashley, other than his unsubstantiated testimony that NP Jeavons “hated him,” and “likely” discussed plaintiff's 2013 grievance with Ryerson in conjunction with his subsequent complaints. (Pl.’s Dep. at 125-27). 18 Nevertheless, plaintiff admits that he did not meet NP Jeavons before 2015. (Id. at 127). Given the absence of any facts plausibly suggesting that NP Jeavons was aware of plaintiff's prior grievance regarding triple combination therapy, or retaliated against him because of it, plaintiff's First Amendment retaliation claim is may not withstand summary judgment. 2. Defendants Hesse, Gilfus, and Donnelly *17 Plaintiff's last surviving cause of action alleges that in January 2015, CO Gilfus, CO Hesse, and Sgt. Donnelly acted together to destroy plaintiff's legal documents and leave his property in disarray, in retaliation for plaintiff filing a grievance and court proceeding against CO Hesse regarding plaintiff's efforts to attain a program assignment in the law library. (SAC at ¶¶17-20, 69-87; Haimson Aff. Ex. A at 173-75). Defendants argue that, because plaintiff failed to exhaust his administrative remedies with respect to this claim, it should be dismissed. Alternatively, defendants argue that plaintiff's retaliation claim fails against defendant Donnelly for lack of personal involvement, and against Gilfus and Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 41 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 Donnelly for failure to establish a causal connection between any protected speech and their alleged adverse actions. The court agrees that plaintiff failed to exhaust his administrative remedies with respect to this retaliation claim, and plaintiff's cause of action should be dismissed accordingly. The Prison Litigation Reform Act, (“PLRA”), 42 U.S.C. § 1997e(a), requires an inmate to exhaust all available administrative remedies prior to bringing a federal civil rights action. The exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and regardless of the subject matter of the claim. See Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004), abrogated on other grounds by Ross v. Blake, 380 F. 3d. 670 (2004) (citing Porter v. Nussle, 534 U.S. 516, 532 (2002)). Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Id. at 675. The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. Jones v. Bock, 549 U.S. 199, 218-19 (2007) (citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford, the Court held that “proper” exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. Woodford, 548 U.S. at 90-103. The grievance procedure in New York is a three-tiered process. The inmate must first file a grievance with the Inmate Grievance Resolution Committee (“IGRC”). N.Y. Comp. Codes R. & Regs., tit. 7 §§ 701.5(a)(1) and (b). An adverse decision of the IGRC may be appealed to the Superintendent of the Facility. Id. § 701.5(c). Adverse decisions at the Superintendent's level may be appealed to the Central Office Review Committee (“CORC”). Id. § 701.5(d). The court also notes that the regulations governing the Inmate Grievance Program encourage the inmate to “resolve his/ her complaints through the guidance and counseling unit, the program area directly affected, or other existing channels (informal or formal) prior to submitting a grievance.” Id. § 701.3(a) (Inmate's Responsibility). There is also a special section for complaints of harassment. Id. § 701.8. Complaints of harassment are handled by an expedited procedure which provides that such grievances are forwarded directly to the Superintendent of the facility, after which the inmate must appeal any negative determination to the CORC. Id. §§ 701.8(h) & (i), 701.5. Until recently, the Second Circuit utilized a three-part inquiry to determine whether an inmate had properly exhausted his administrative remedies. See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing Hemphill v. State of New York, 380 F.3d 680, 686 (2d Cir. 2004). The Hemphill inquiry asked (1) whether the administrative remedies were available to the inmate; (2) whether defendants’ own actions inhibiting exhaustion estops them from raising the defense; and (3) whether “special circumstances” justify the inmate's failure to comply with the exhaustion requirement. Id. *18 The Supreme Court has now made clear that courts may not excuse a prisoner's failure to exhaust because of “special circumstances.” Ross v. Blake, __ U.S. __, 136 S. Ct. 1850, 1857 (June 6, 2016). “ ‘[M]andatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion.’ ” Riles v. Buchanan, 656 F. App'x 577, 580 (2d Cir. 2016) (quoting Ross, __ U.S. at __, 136 S. Ct. at 1857). Although Ross has eliminated the “special circumstances” exception, the other two factors in Hemphill – availability and estoppel – are still valid. The court in Ross referred to “availability” as a “textual exception” to mandatory exhaustion, and “estoppel” has become one of the three factors in determining availability. Ross, __ U.S. at __, 136 S. Ct. at 1858. Courts evaluating whether an inmate has exhausted his or her administrative remedies must focus on whether those remedies were “available” to the inmate. Id; see also Riles, 2016 WL 4572321 at *2. Here, the record reflects that on or about January 19, 2015 plaintiff filed grievance AUB-6602-15, alleging that his property was tampered with and his legal documents destroyed upon transfer to the SHU in retaliation for his “filing of a court action against staff here at Auburn.” (Declaration of Cheryl Parmiter (“Parmiter Decl.”) Ex. B at 5). The grievance was investigated by non-party Sgt. Murray on January 20, 2015, and three days later the IGRC granted plaintiff's grievance, to the extent that plaintiff was advised to file a claim if he was missing any property. (Id. Ex. B at 3, 6). Plaintiff appealed the grievance at the Superintendent level on January 26, 2015, and on January 28 th Acting Superintendent Robinson agreed with the IGRC's findings and advised plaintiff to file a claim if he was missing any property. (Id. Ex. B at 2). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 42 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 Plaintiff admits that grievance AUB-6602-15 was never processed beyond the Superintendent level. (Pl.’s Dep. at 82). At his deposition, plaintiff testified that “for some reason [it] came up missing[.]” (Id.). Nevertheless, plaintiff has not produced any proof that an appeal to CORC actually existed. The record reflects that Auburn C.F. and Southport C.F., the two facilities in which plaintiff was housed in 2015, had fully functioning inmate grievance processes. (Declaration of Rachel Seguin (“Seguin Decl.”) at ¶ 13, Parmiter Decl. at ¶ 10). The evidence further indicates that plaintiff utilized the grievance process on various other occasions in 2015, including the appeal of three other grievances to CORC after January 2015. (Seguin Decl. at ¶ 14, Ex. A; Parmiter Decl. ¶¶ 18-19, Ex. A at 1). Plaintiff testified that he continued to receive CORC determinations even after his release into federal custody in June 2015. 19 (Pl.’s Dep. at 142-43). As previously discussed, the only basis on which the court may excuse plaintiff's undisputed failure to exhaust his administrative remedies is the unavailability of those remedies. In this case, plaintiff's unsupported, general testimony that grievance AUB-6602-15 was “lost” in the appeals process is insufficient to establish a genuine issue of material fact as to the availability of the inmate grievance process to plaintiff. 20 See Davis v. Grant, No. 15-CV-5359, 2019 WL 498277, at *10 (S.D.N.Y. Feb. 8, 2019) (plaintiff's statements that his grievance was lost or destroyed, which stood alone and unsupported, did not warrant exception to exhaustion requirement); Engles v. Jones, No. 13- CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y. Dec. 28, 2018) (granting summary judgment to defendants for failure to exhaust where there was no record of plaintiff filing his grievance and plaintiff merely alleged without any documentary support that his grievance was lost or destroyed); Scott v. Kastner-Smith, 298 F. Supp. 3d 545, 555 (W.D.N.Y. 2018) (“[C]ourts have consistently held ... that an inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.”). *19 Considering plaintiff's unsupported allegations, along with evidence that plaintiff successfully utilized the IGP and appealed to CORC during the same period of time, the court agrees that there is no applicable exception to the exhaustion requirement, and plaintiff's retaliation claim against defendants CO Gilfus, CO Hesse, and Sgt. Donnelly should be dismissed. WHEREFORE, based on the findings above, it is RECOMMENDED, that the motion for summary judgment of the Wilson Elser defendants–defendants Koenigsmann, Jones, Coryer, Donnelly, O'Connor-Ryerson, Gilfus, Hesse, Ashley, Gardner, Dinello, and Mueller–(Dkt. No. 210) be GRANTED, and the plaintiff's complaint be DISMISSED IN ITS ENTIRETY as against them; and it is further RECOMMENDED, that defendant Jeavon's motion for summary judgment (Dkt. No. 213) be GRANTED, and the plaintiff's complaint be DISMISSED IN ITS ENTIRETY as against her. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) 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 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., 2021 WL 2269839 Footnotes 1 Although plaintiff has labeled this pleading “Amended Complaint Pursuant to 42 U.S.C. § 1983”, it is actually the second amended complaint filed in this action (See Dkt. Nos. 1, 20, 64), thus the court will refer to it as such throughout this Report-Recommendation. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 43 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 2 At the time the motion to dismiss was filed, all defendants were represented by the New York Attorney General's Office. The defendants retained outside counsel in October 2019. (Dkt. Nos. 151, 153, 154). 3 Another named defendant, Wesley Canfield, was dismissed from this action on May 4, 2020, in light of a Suggestion of Death filed by defendants and the failure of plaintiff to substitute the deceased defendant's estate. (Dkt. Nos. 170, 187). 4 There are two summary judgment motions presently pending before this court. For the sake of brevity, defendants Koenigsmann, Jones, Coryer, Donnelly, O'Connor-Ryerson, Gilfus, Hesse, Ashley, Gardner, Dinello, and Mueller will collectively be referred to as the “Wilson Elser”defendants, based on the name of the law firm that now represents all of them. The Wilson Elser defendants filed their motion for summary judgment on October 28, 2020. (Dkt. No. 210). Defendant Jeavons filed her motion for summary judgment on November 3, 2020. (Dkt. No. 213). 5 Previously Local Rule 7.1(a)(3). 6 A “log” drop in viral load is a 10-fold decrease. For example, a decrease in viral load from 10,000 to 100 copies could be described as a 2-log decrease. (Ryerson Decl. at ¶ 27 n. 2). 7 Plaintiff testified that “IFD” is a reference to “infectious disease.” (Pl.’s Dep. at 91-92). In the SAC, Nurse Ashley is identified as responsible for coordinating and monitoring the treatment of infectious diseases for the medical department at Auburn C.F. (SAC at ¶ 10). 8 Plaintiff's submission suggests that his transfer was the result of an unrelated disciplinary action. (Plaintiff's Response in Opposition to Defendants’ Motion for Summary Judgment (“Pl.’s Opposition”) Ex. H1 (Dkt. No. 223-1 at 10) ). 9 Plaintiff testified that CO Hesse was in the SHU that day delivering books from the law library. (Pl.’s Dep. at 164). 10 Defendants maintain that the decision to terminate plaintiff's triple combination therapy treatment was made by CMO Koenigsmann, not NP Ryerson or Nurse Ashley. (Ryerson Decl. at ¶ 54). 11 There is some evidence supporting plaintiff's contention that his HCV treatment was extended beyond the initial twelve week period, to the extent that the record documents treatment at Southport C.F. extending into weeks thirteen and fourteen. However, plaintiff has not identified a specific recommendation from any treatment provider, or consulting specialist, indicating that he should continue the triple combination therapy, or why, despite the initial treatment failure. 12 The Wilson Elser defendants have also moved to dismiss this medical indifference claim on behalf of defendant Sgt. Donnelly, however the SAC does not allege Sgt. Donnelly's culpability with respect to this cause of action. (SAC at ¶ 85). Plaintiff specifically testified that Sgt. Donnelly did not “hold any responsibly in the deliberate indifference claims,” and the claims against him were limited to the retaliation claim, as further discussed below. (Pl.’s Dep. at 173-74). 13 “Although the Second Circuit has never required plaintiffs alleging a denial of adequate medical care in a Section 1983 action to produce expert medical testimony ... multiple district courts in this Circuit, and at least four Circuit courts, have concluded that a plaintiff who complains that a delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment.” Ray v. Zamilus, No. 13 Civ. 2201, 2017 WL 4329722, at *10 (S.D.N.Y. Sept. 27, 2017) (internal citation and quotations omitted) (listing cases). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 44 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 14 Harvoni was the first combination pill approved to treat chronic HCV genotype one infections. (Koenigsmann Decl. at ¶ 26). Studies indicated that there was a “high cure rate for treatment-experienced cirrhotic patients with genotype 1 with the use of Harvoni[.]” (Id. at ¶ 27, Ex. A). 15 Plaintiff's correspondence indicates that, as of January 2015, NP Jeavons had recently taken on the role of his primary care provider. (Ryerson Decl. Ex. F at 34). Plaintiff testified that his prior provider, Dr. Weinstock, retired sometime in the fall of 2014, after which “everything went downhill.” (Pl.’s Dep. at 40, 59, 127). 16 Plaintiff alleges that he suffered night sweats, fatigue, nausea and itching during this period; however these unsupported, subjective allegations are generally unsupported by the record and thus are insufficient to give rise to a genuine issue of fact concerning the objective element. See Bilal v. White, 494 F. App'x at 146 (Plaintiff's “mere recitation of the formula that he suffered ‘extreme pain’ is insufficient to raise an issue of fact as to whether the delay of the pain medication was sufficiently serious to rise to the level of [a constitutional] violation.”). 17 This court recognizes the existence of other factors, as discussed in Colon, applicable only when the alleged adverse action is the issuance of a misbehavior report. 18 Although not clearly alleged, plaintiff at one point appears to suggest that NP Jeavons delayed his evaluation for treatment in retaliation for the contemporaneous grievances he filed against her regarding said delay. This allegation is patently meritless. By the time plaintiff filed his February 19, 2015 grievance, plaintiff and his medical care had already been transferred into the custody of Southport C.F. Plaintiff was transported back to Auburn C.F. on or about March 9, 2015. A little over a month later, plaintiff had completed his initial work-up for treatment under the care of NP Jeavons, who during that time submitted a request for approval by CMO Koenigsmann. On these undisputed facts, no reasonable juror could conclude that NP Jeavons was delaying plaintiff's treatment evaluation between the time plaintiff returned to Auburn C.F. and when he became approved for treatment. 19 The Superintendent responded to grievance AUB-6602-15 on January 28, 2015, well before plaintiff was released to federal custody in June 2015. Between January and June 2015, plaintiff filed three other grievances and appealed them to CORC. (Seguin Decl. at ¶ 14, Ex. A at 2-3; Parmiter Decl. at ¶¶ 18-19, Ex. A at 1). 20 By contrast, this court has previously recommended denying summary judgment where no evidence in the record contradicted a plaintiff's allegation that his ability to file a grievance was thwarted by prison staff. See Sawyer v. Locy, No. 9:19-CV-879 (MAD/ATB), 2020 WL 7684957, at *4 (N.D.N.Y. Oct. 21, 2020), report and recommendation adopted, 2020 WL 7382229 (N.D.N.Y. Dec. 16, 2020). In Sawyer, however, the defendants argued that plaintiff failed to exhaust his administrative remedies, yet failed to offer compelling evidence sufficient to meet their burden on the dispositive motion, such as deposition testimony or party affidavits. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 45 of 300
Bernier v. Koenigsmann, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2021 WL 2264315 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Jean BERNIER, Plaintiff, v. KOENIGSMANN et al., Defendants. 9:17-CV-254 | Signed 06/03/2021 Attorneys and Law Firms JEAN BERNIER, Plaintiff, Pro Se, 116-30 131st Street, Queens, NY 11420. OF COUNSEL: NICOLE E. HAIMSON, ESQ., WILSON, ELSER LAW FIRM, Attorneys for Defendants, Koenigsmann, Jones, Coryer, Donnelly, O'Connor-Ryerson, Gilfus, Hesse, Ashley, Gardner, Dinello, and Mueller, 200 Great Oaks Boulevard, Suite 228, Albany, NY 12203. OF COUNSEL: JAMES A. MEGGESTO, ESQ., MEGGESTO, CROSSETT & VALERINO, LLP, Attorneys for Defendant Jeavons, 313 East Willow Street, Suite 201, Syracuse, NY 13203. ORDER ADOPTING REPORT & RECOMMENDATION DAVID N. HURD, United States District Judge *1 On March 6, 2015, pro se plaintiff Jean Bernier (“plaintiff”) filed this civil rights action alleging that defendants violated his constitutional rights while he was incarcerated at Auburn Correctional Facility and Southport Correctional Facility. Dkt. No. 1. After plaintiff amended his complaint, Dkt. No. 20, the Western District of New York severed a number of his claims and transferred them to this judicial district, Dkt. Nos. 50, 51. Thereafter, the Court accepted plaintiff's Second Amended Complaint for filing. Dkt. No. 57, 63, 64. On July 28, 2017, defendants filed a partial motion to dismiss pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b) (6). Dkt. No. 71. That motion was granted as to certain defendants and claims on March 15, 2018. Dkt. No. 96, 104. At the request of the plaintiff, several other defendants were dismissed from this action on July 30, 2019. Dkt. Nos. 143– 45. The parties completed discovery into plaintiff's (1) Eighth Amendment medical-indifference claims against defendants Ashley and O'Connor-Ryerson; (2) Eighth Amendment medical-indifference claims against defendants Koenigsmann, Mueller, Dinello, Jones, Coryer, O'Connor- Ryerson, Ashley, Gardner, and Jeavons; (3) First Amendment retaliation claims against defendants Ashley, O'Connor- Ryerson, and Jeavons; and (4) First Amendment retaliation claims against defendants Hesse, Gilfus, and Donnelly. Defendants have moved for summary judgment on these claims pursuant to Rule 56. Dkt. Nos. 210, 213. On May 13, 2021, U.S. Magistrate Judge Andrew T. Baxter advised by Report & Recommendation that defendants’ motions for summary judgment be granted and that plaintiff's Second Amended Complaint be dismissed. Dkt. No. 229. Plaintiff has not filed an objection, and the time period in which to do so has expired. See id. Upon review for clear error, the Report & Recommendation is accepted and adopted in all respects. See FED. R. CIV. P. 72(b). Therefore, it is ORDERED that 1. The Report & Recommendation (Dkt. No. 229) is accepted and adopted; and 2. Plaintiff's complaint is DISMISSED with prejudice. IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2021 WL 2264315 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 46 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 5752333 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Benjamin BRAXTON a/k/ a Obed/Edom Braxton, Plaintiff, v. Kevin BRUEN, et al., Defendants. 9:17-CV-1346 (BKS/ML) | Signed 08/24/2020 Attorneys and Law Firms BENJAMIN BRAXTON, 16-A-2314, Plaintiff, pro se, Clinton Correctional Facility, P.O. Box 2000, Dannemora, NY 12929. HON. LETITIA JAMES, JOSHUA E. MCMAHON, ESQ. New York State Attorney General, Attorney for Defendants, Litigation Bureau, The Capitol, Albany, New York 12224. REPORT-RECOMMENDATION AND ORDER 1 MIROSLAV LOVRIC, United States Magistrate Judge *1 Plaintiff pro se Benjamin Braxton (“Braxton” 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 Deputy Commissioner of Counsel Kevin Bruen (“Bruen”), Deputy Commissioner of Program Services Jeff McKoy (“McKoy”), Deputy Commissioner of Facility Operations Joseph Belinier (“Belinier”), Deputy Commissioner of Administrative Services Daniel F. Martuscello, III (“Martuscello”), and Deputy Commissioner Chief Medical Officer Carl J. Koenigsmann (“Koenigsmann”) for violations of his rights under the Eighth Amendment. Dkt. No. 42 (“Am. Compl.”). Presently before the Court is Defendants’ motion for summary judgment and dismissal of Braxton's Amended Complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. Dkt. No. 80. For the following reasons, it is recommended that Defendants’ motion for summary judgment be denied. I. BACKGROUND A. Facts 2 From 1994 until 2008, Plaintiff was incarcerated in various DOCCS’ facilities. Dkt. No. 80-3 at 18-19. In 2008, Plaintiff was released from custody. Id. at 19. In June 2009, Braxton was treated at Bellevue Hospital for lightheadness, palpitations, and “fading out” due to exposure to cigarette smoke. Am. Compl. at ¶¶ 78-79; Dkt. No. 42-1 at 38-40. In 2013, Plaintiff returned to DOCCS’ custody. Dkt. No. 80-3 at 19. In June 2016, Plaintiff was incarcerated at Downstate Correctional Facility. Am. Compl. at ¶ 60. Plaintiff was housed in an area with seventeen inmates who were “chain smokers.” Id. In August 2016, Plaintiff arrived at Clinton Correctional Facility (“Clinton C.F.”), where he is currently confined. Am. Compl. at ¶ 62. Plaintiff is confined to a single occupancy, 6 × 9 cell, without a window. Dkt. No. 80-3 at 20-24. The cell door is comprised of bars however, there is no “cross ventilation” because inmates in the dormitory block the vents in their cells with tape to prevent roaches from entering their cells. Id. at 22-23. There are forty-six inmates on each tier of the dormitory, with six tiers. Id. at 32-33. *2 Clinton C.F. has a policy prohibiting smoking indoors. Dkt. No. 80-3 at 42-44. The “majority of inmates” in Braxton's dormitory are smokers or “chain smokers” who smoke between three and five packs of cigarettes each day. Am. Compl. at ¶ 62. In Braxton's dormitory, approximately 275 inmates smoke constantly in their cells, every night, using “makeshift” ash trays from soap. Id. at ¶ 61; Dkt. No. 80-3 at 34. Braxton claims that the smoke lingers in the air and causes him to wake during the night wheezing and coughing. Am. Compl. at ¶ 61. In the morning, Braxton's shirts are “beige” in color from nicotine. Id. at ¶ 36. The inmates and officers also smoke in the hallways and in “hideaways,” areas without cameras. Dkt. No. 80-3 at 36. Braxton has witnessed corrections officers verbally reprimand inmates who failed to comply with the policy. Id. at 44. From August 2016 until June 2017, Plaintiff received medical treatment for complaints related to exposure to second-hand or Environmental Tobacco Smoke (“ETS”) including asthma, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 47 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 congestion, eye irritation, and sneezing. Am. Compl. at ¶ 76; Dkt. No. 1-1 at 8-11, 22. B. Procedural History On December 14, 2017, the Court received Braxton's Complaint. Dkt. No. 1. Upon review of the Complaint, the Court directed Defendants to respond to the Eighth Amendment claims related to ETS or second hand smoke. Dkt. No. 10. On May 3, 2018, Defendants filed an Answer to the Complaint. Dkt. No. 17. On November 15, 2018, the Court granted Plaintiff's motion to amend the Complaint and accepted the proposed Amended Complaint, as modified by the Court's Decision and Order, as the operative pleading. Dkt. Nos. 41 and 42. On November 28, 2018, Defendants filed an Answer to the Amended Complaint. 3 Dkt. No. 46. On July 5, 2019, Braxton was deposed. Dkt. No. 80-3. On February 21, 2020, Defendants filed the within motion pursuant to Fed. R. Civ. P. 56 seeking judgment as a matter of law. Dkt. No. 80. Braxton opposed the motion. Dkt. Nos. 86 and 87. II. MOTION FOR SUMMARY JUDGMENT 4 A. Legal Standard A motion for summary judgment may be granted if there is no genuine issue as to any material fact, it is 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)). *3 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). B. N.D.N.Y. Local Rule 7.1(a)(3) Local Rule 7.1(a)(3) requires a party moving for summary judgment to file and serve a Statement of Material Facts. See N.D.N.Y. L.R. 7.1(a)(3). “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.” Id. The opposing party is required to file a response to the Statement of Material facts “admitting and/or denying each of the movant's assertions in matching numbered paragraphs.” Id. “The Court shall deem admitted any properly supported facts set forth in the Statement of Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 48 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 Material Facts that the opposing party does not specifically controvert.” Id. (emphasis omitted). Here, Braxton filed a Memorandum of Law in Opposition to Defendants’ Motion, but did not respond to Defendants’ Statement of Material Facts. See Dkt. Nos. 86 and 87. Although the Local Rules provide, that the Court shall deem admitted any facts the non-moving party fails to “specifically controvert,” pro se plaintiffs are afforded special solicitude in this District and within the Second Circuit. N.D.N.Y. L.R. 7.1(a)(3); see subsection II.A. supra. In light of Plaintiff's pro se status, the Court has reviewed the entire summary judgment record in order to ascertain the undisputed material facts. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (noting court's “broad discretion to determine whether to overlook a party's failure to comply with local court rules”). Consequently, the facts set forth in Defendants’ Rule 7.1 Statement of Material Facts are accepted as true as to those facts that are not disputed by Braxton's sworn deposition testimony, annexed as an exhibit to Defendants’ motion. See 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). III. DISCUSSION *4 Defendants move for summary judgment and dismissal of Braxton's claims for failure to exhaust his administrative remedies. See Dkt. No. 80-1 at 4-6. In the alternative, Defendants contend that there are no disputed issues of fact precluding summary judgment on the Eighth Amendment claims and, further, that they are entitled to qualified immunity. See id. at 7-12. 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 the Central Office Review Committee (“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. Defendants bear the burden of establishing that a prisoner failed to satisfy the exhaustion requirement. See Jones, 549 U.S. at 216. *5 At the time of the incidents that give rise to this action, Clinton C.F. had an Inmate Grievance Program (“IGP”). Dkt. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 49 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 No. 80-5; Dkt. No. 80-7. Braxton admits that he is familiar with the IGP, having filed “easily more than ten” grievances during his incarceration. Dkt. No. 80-3 at 71-76, 116-199, 123. 1. Plaintiff's Failure to Exhaust The record contains few undisputed facts related to Braxton's attempts to exhaust his administrative remedies. Braxton testified that he submitted a grievance on October 5, 2016 complaining about inadequate ventilation, his health and safety, and “under enforcement” of the non-smoking policy. Dkt. No. 42-1 at 1; Dkt. No. 80-3 at 81. Braxton testified that, because he did not receive a response to his grievance, he appealed his grievance to the IGRC Supervisor and requested a formal hearing. Dkt. No. 80-3 at 81, 84-85. After receiving no response from the IGRC, Braxton appealed his grievance to the Superintendent of Clinton C.F. Id. at 81, 85. With no response from the Superintendent, on October 31, 2016, Braxton appealed his grievance to DOCCS’ Commissioner Anthony Annucci and to the “IGRC Administrator” at the State Commission of Correction. Dkt. No. 80-3 at 86. Braxton did not receive a response to his October 31, 2016 correspondence. Id. at 93. Braxton testified that he submitted a second grievance on February 11, 2017, with the same complaints, and attached a document entitled “Proposal for Non-Smoking Dormitory - Grievance Appeal” (the “Proposal”). Dkt. No. 1-1 at 13-19; Dkt. No. 80-3 at 96. On February 17, 2017, because he did not receive a response, Braxton appealed his grievance to the IGRC Supervisor and asked for a formal hearing. Dkt. No. 80-3 at 97, 100. On February 23, 2017, because he received no response from the IGRC Supervisor, Braxton appealed his grievance to the Superintendent of Clinton C.F. Id. The Superintendent's Office acknowledged receipt of the appeal on February 24, 2017. Dkt. No. 42-1 at 9. On February 24, 2017, Superintendent Kirkpatrick responded and directed Braxton to file a grievance. Dkt. No. 80-3 at 112. Braxton testified that, in light of the fact that he had already filed grievances, he sent his grievances, appeals, and Proposal directly to Koenigsmann, Martuscello, Bruen, Bellnier and McKoy, who were members of CORC. Am. Compl. at ¶¶ 71-75; Dkt. No. 1-1 at 23-29; Dkt. No. 80-3 at 93. Braxton forwarded the letters on April 19, 2017 and did not receive a response. Dkt. No. 80-3 at 112. Conversely, Defendants assert that Braxton did not file any grievances or appeals related to ETS exposure. In support of their motion, Defendants submit a declaration from the IGP Supervisor at Clinton C.F. Christine Gregory (“Gregory”). Dkt. No. 80-7. Gregory avers that “[p]laintiff's claims in this action are a proper subject for a grievance under the IGP.” Id. at ¶ 12. Gregory states that, based upon a review of DOCCS’ records, Braxton did not file any grievances related to ETS or second-hand smoke. Id. at ¶¶ 13-14. Defendants also submit a declaration from DOCCS IGP Assistant Director Rachael Seguin (“Seguin”). Dkt. No. 80-5. Seguin's review of CORC records did not reveal any appeals from Braxton related to ETS. Id. at ¶ 16. Defendants also submit documents related to Plaintiff's grievance history. Dkt. No. 80-6; Dkt. No. 80-8 *6 The issue of whether Braxton filed grievances and appeals is clearly disputed. However, Braxton concedes that he did not receive a response from CORC, or any of CORC's members, prior to filing the within action. Dkt. No. 80-3 at 93, 112. As a result, I find that Plaintiff failed to exhaust his administrative remedies before filing this action. 5 2. Availability of Administrative Remedies The Court's finding that Braxton failed to exhaust his administrative remedies does not end the exhaustion review. A prisoner's failure to exhaust administrative remedies may be excused if remedies were unavailable to the inmate. Ross v. Blake, 136 S.Ct. 1850, 1858 (2016) (“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). Braxton argues that administrative remedies were unavailable because the grievance process did not provide “steps for ignored grievances.” Dkt. No. 86 at 9. The issue of “unfiled and unanswered” grievances was addressed by the Second Circuit in Williams v. Priatno. In Williams, the plaintiff, who was confined to the SHU, claimed that he gave a grievance Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 50 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 to a guard to file but the grievance was never filed and therefore, the inmate never received a response. Williams, 829 F.3d at 126. The plaintiff alleged that the guard must have disposed of the grievance because the facility had no record of the grievance. Id. The Circuit ruled in favor of the inmate holding that “[u]nder that circumstance, the regulations do not adequately outline the process to appeal or otherwise exhaust administrative remedies. On their face, the regulations only contemplate appeals of grievances that were actually filed.” Id. at 126. In Cicio v. Wenderlich, 714 Fed. App'x 96 (2d Cir. 2018), the Second Circuit declined to apply the holding of Williams in a case where the plaintiff claimed that he filed a grievance directly with the IGRC, rather than providing the grievance to a prison guard to file on his behalf. The IGRC had not record of receipt of the grievance and the plaintiff admitted that he never received a response and, rather than appeal, he commenced the lawsuit. Id. at 97-98. In that instance, the plaintiff was not transferred after he attempted to file his grievance and the Circuit held, the “situation was not so opaque that it became ‘incapable of use’ because ‘[w]hen a prisoner has filed a grievance, but receives no response, the regulations provide a right of appeal.’ ” Id. (citing, inter alia, 7 N.Y.C.R.R. § 701.6(g)). *7 In this matter, Braxton claims that he filed two grievances and appeals to the IGRC, Superintendent, and individual members of CORC. Braxton provided extensive deposition testimony regarding his efforts to file grievances and appeals and proffered copies of his grievances, appeals, and letters. See Dkt. No. 1-1 at 4-5, 1-20, 23-29; Dkt. No. 42-1 at 1-5, 9. Defendants have failed to come forward with any evidence contradicting Plaintiff's deposition testimony and documentary evidence. Indeed, Defendants’ motion lacks an affidavit from Kirkpatrick or sworn testimony from Defendants. Accordingly, the Court finds that Defendants have failed to carry their burden of proving the affirmative defense on the present record. See Juarbe v. Carnegie, No. 9:15-CV-1495 (MAD/DEP), 2016 WL 8732798 (N.D.N.Y. Oct. 7, 2016) (“Because defendants have provided no evidence that any Auburn official, including the grievance clerk, received plaintiff's grievances, provided them with numbers, or logged them, the factual circumstances in this case are, at least when drawing all inferences in favor of plaintiff, identical to those in Williams, where the plaintiff's grievances were both unfiled and unanswered.”); see Reid v. Marzano, 9:15-CV-0761 (MAD/CFH), 2017 WL 1040420, at *3 (N.D.N. y. Mar. 17, 2017) (holding that the plaintiff's deposition testimony that he did not know how to proceed when he did not receive a response to his grievance is sufficient to withstand summary judgment on the issue of exhaustion). Braxton's claim that he was unaware and confused as to how to pursue administrative remedies when his grievances were unfiled and unanswered is strengthened by the fact that Kirkpatrick responded to Braxton's February 23, 2017 appeal and directed Braxton to file “any complaint that [he] received directly with the IGP office.” 6 Dkt. No. 1-1 at 21. Dkt. No. 80-3 at 102-03, 129. Braxton testified that “he already filed a grievance” and, after “waiting a reasonable time period,” he appealed directly to Defendants. Id. at 112, 130. While the facts herein are distinguishable from Williams and Cicio, several courts in this district have applied Williams in similar scenarios, where the plaintiffs proffered less compelling evidence to support their contentions. See Maldonado v. Mandalaywala, No. 9:17-CV-1303 (BKS/ TWD), 2020 WL 1159426, at *17–18 (N.D.N.Y. Feb. 12, 2020) (applying Williams despite the fact that the plaintiff was not confined in the SHU and did not submit any contemporaneous correspondence inquiring about the status of his grievance); see Britt v. Carberry, No. 9:17-CV-0234 (MAD/DEP), 2019 WL 3365766 (N.D.N.Y. Mar. 22, 2019) (applying Williams where the plaintiff filed grievances, while in the SHU, with the grievance office, but failed to follow up or appeal and failed to proffer copies of the grievances on the motion); Jackson v. Downstate Corr. Facility, No. 16- CV-0267, 2018 WL 3650136, at *8 (S.D.N.Y. July 31, 2018). Defendants did not address the issue of unavailability or Williams and progeny. See Jackson, 2018 WL 3650136, at *8 (finding the defendants’ failure to address Williams “disconcerting” given the precedential nature of the case and the fact that the plaintiff was a pro se litigant). The record, when viewed in the light most favorable to Braxton, suggests that his grievances were unfiled and unanswered, creating an issue of fact as to the availability of administrative remedies under Williams. See Terry v. Hulse, No. 16-CV-252, 2018 WL 4682784, at *9 (S.D.N.Y. Sept. 28, 2018) (denying summary judgment where the record contains sufficient detail regarding the plaintiff's attempts to file grievances) (collecting cases); see also Thaxton v. Simmons, No. 9:10-CV-1318 (MAD/ RFT), 2013 WL 4806457, at *4 (N.D.N.Y. Sept. 9, 2013) (“[A] question of fact exists as to whether [p]laintiff never filed his initial grievance on April 29, as [d]efendants claim, or that, as [p]laintiff claims, he filed a timely grievance that Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 51 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 was lost or tampered with by [d]efendants. Such credibility assessments are to be resolved by a trier of fact.”). *8 Accordingly, the undersigned recommends that Defendants’ Motion for Summary Judgment on this issue be denied, without prejudice and with the opportunity to renew by way of an exhaustion hearing, should Defendants request such a hearing. B. Eighth Amendment Claims Defendants move for summary judgment and dismissal of Braxton's Eighth Amendment claims arguing that there is no issue of fact concerning Defendants’ alleged violation of Plaintiff's Eighth Amendment rights. Dkt. No. 80-1 at 6-10. The Eighth Amendment protects prisoners from “cruel and unusual punishment” at the hands of prison officials. Wilson v. Seiter, 501 U.S. 294, 296-97 (1991); Estelle v. Gamble, 429 U.S. 97, 104 (1976). “The Constitution does not mandate comfortable prisons but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). Allegations of exposure to ETS or second hand smoke may form the basis for an Eighth Amendment claim. Helling v. McKinney, 509 U.S. 25, 35 (1993). “To prevail on [an] Eighth Amendment claim alleging ‘serious medical problems caused by exposure to ETS,’ [a plaintiff] must ‘prove both the subjective and objective elements necessary to prove an Eighth Amendment violation.’ ” Colon v. Drew, 335 Fed. App'x 86, 87 (2d Cir. 2009) (quoting Helling, 509 U.S. at 35). Allegations related to ETS exposure may involve claims based upon present harm and claims that the exposure will cause future harm. Johnson v. Fischer, No. 9:12-CV-0210 (DNH/TWD), 2015 WL 670429, at *9 (N.D.N.Y. Feb. 17, 2015). Here, Plaintiff alleges that he is suffering from present and will suffer future harm. See Am. Compl. at ¶ 76; Dkt. No. 80-3 at 70. 1. Objective Element In cases involving present harm from ETS exposure, the objective component of the Eighth Amendment analysis is satisfied with evidence that the plaintiff suffers from a medical need or condition that is sufficiently serious. McFadden v. Koenigsmann, No. 18-CV-6684, 2020 WL 2542673, at *3 (W.D.N.Y. May 19, 2020). To be “sufficiently serious,” the condition must be “a condition of urgency, one that may produce death, degeneration, or extreme pain.” Gillespie v. Taylor, No. 9:07-CV-0694 (GLS/GHL), 2009 WL 3165543, at *5 (N.D.N.Y. Sept. 28, 2009) (citations omitted). “Factors that have been considered include ‘[t]he existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment; the presence of a medical condition that significantly affects an individual's daily activities; or the existence of chronic and substantial pain.’ ” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). With respect to future harm, to satisfy the objective element, a plaintiff must show that he was exposed to unreasonably high levels of ETS. Davis v. New York, 316 F.3d 93,100 (2d Cir. 2002) (citation omitted). An analysis of this issue should focus on “whether levels of ETS in the facility were so high that they violated contemporary standards of decency.” Grayson v. Courtney, No. 9:16-CV-1118 (GLS/ ATB), 2018 WL 6933296, at *9 (N.D.N.Y. Dec. 3, 2018) (citation omitted). In Helling, the Supreme Court explained: *9 determining whether [plaintiff's] conditions of confinement violate the Eighth Amendment requires more than a scientific and statistical inquiry into the seriousness of the potential harm and the likelihood that such injury to health will actually be caused by exposure to ETS. It also requires a court to assess whether society considers the risk that the prisoner complains of to be so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk. In other words, the prisoner must show that the risk of which he complains is not one that today's society chooses to tolerate. Helling, 509 U.S. at 36 (emphasis in original). It should be noted however, that the Supreme Court did not mandate smoke-free prisons. Liggins v. Parker, No. 9:04- Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 52 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 CV-0966 (NAM/DEP), 2007 WL 2815630, at *17 (N.D.N.Y. Sept. 25, 2007) (citing Scott v. District of Columbia, 139 F.3d 940, 942 (D.C.Cir.), cert. denied sub nom., Dawson v. District of Columbia, 525 U.S. 851, 119 S.Ct. 125 (1998)). Defendants argue that Braxton's medical complaints are “relatively minor health conditions” that were not caused by ETS exposure. Dkt. No. 80-1 at 9. Defendants also contend that Braxton cannot establish an objectively serious risk of harm because his exposure is “intermittent” and occurs “primarily at night and is limited to his cell and the hallways on his block.” Id. at 8-9. Braxton testified that he suffers from asthma, dizziness, and blackouts as a result of ETS exposure and proffered medical records supporting his allegations. See Dkt. No. 1-1 at 8-11; Dkt. No. 83 at 33, 135-36, 138; Dkt. No. 86 at 16-21; Dkt. No. 86-1 at 7-8; Dkt. No. 87 at 4. According to the record evidence, in June 2009, Plaintiff was treated at Bellevue Hospital for complaints related to ETS exposure. Dkt. No. 42-1 at 38. Plaintiff reported palpitations, lightheadedness, and “fading out” when exposed to cigarette smoke. Id. In 2016, while in DOCCS’ custody, Plaintiff was prescribed Albuterol and Nasacort, and claims that the medication was necessary due to ETS exposure. Dkt. No. 1-1 at 1, 9. In 2017, Plaintiff, complained of respiratory distress, nose irritation, and “dry eyes” and was treated at sick call for complaints related to cigarette smoke. Id. at 10-11. The nurse scheduled an appointment with the medical provider and gave Braxton over-the-counter medications including “artificial tears” and nasal spray. Id. In June 2017, Plaintiff requested refills for Albuterol and Nasocort. Id. at 8. In September 2018, Plaintiff submitted a Request for a Reasonable Accommodation claiming that he has “fade-outs and/or light-headedness which requires [him] to sit or lie down.” Dkt. No. 87 at 4. Braxton testified that he still suffers from “blackouts” twice each week. Dkt. No. 80-3 at 33. It is undisputed that Braxton is housed in a single occupancy “six by nine” cell, without a window. Dkt. No. 80-3 at 21-25. Braxton testified that there is no “cross ventilation” because inmates put tape over the vents to prevent roaches from entering cells. Id. Braxton estimates that there are forty-six cells on six tiers in his dormitory and claims that approximately 276 inmates, including the inmates in cells on either side of his cell, smoke throughout the night. Id. at 31-33. In addition, sergeants smoke in their areas, in hallways, and in “hideaways” were cameras cannot detect the smoke. Id. at 36, 38. Braxton describes the smoke as “intense” and “constant.” Dkt. No. 80-3 at 33-34. Defendants have not submitted any evidence contradicting Braxton's evidence. Considering these facts, a reasonable factfinder could conclude that Braxton suffered from “sufficiently serious” medical needs for purposes of the objective prong of his Eighth Amendment claim. See Davis, 316 F.3d at 100–01 (holding that allegations that smoke caused dizziness, difficulty breathing, blackouts, and respiratory problems are sufficient to create an issue of fact as whether the plaintiff's Eighth Amendment rights were violated); see also Colon v. Drew, No. 9:03-CV-1018 (LEK/ DEP), 2011 WL 768979, at *1 (N.D.N.Y. Jan. 21, 2011) (finding asthma and shortness of breath due to ETS exposure to be sufficiently serious). *10 Moreover, Braxton's allegations related to the level of ETS exposure he endured are not contradicted by any documentary or testimonial evidence. Viewing the evidence in the light most favorable to Plaintiff, the Court finds genuine issues of material fact as to whether Plaintiff was exposed to unreasonably dangerous levels of ETS that violated contemporary standards of decency. See Davis, 316 F.3d at 101; see Warren v. Keane, 937 F.Supp. 301, 305 (S.D.N.Y. 1996), aff'd and remanded, 196 F.3d 330 (2d Cir. 1999) (finding the allegations sufficient to satisfy the objective element as the plaintiffs described an environment permeated with smoke resulting from, inter alia, under-enforcement of inadequate smoking rules and poor ventilation); McPherson v. Coombe, 29 F.Supp. 2d 141, 145 (W.D.N.Y. 1998) (reasoning that a fact-finder could conclude that the plaintiff faced a risk of future harm where the plaintiff was incarcerated in a poorly ventilated housing unit with 41 other inmates with smoking permitted in all areas of the dormitory); see Colon v. Drew, 335 Fed App'x 86, 88 (2d Cir. 2009) (affirming district court denial of summary judgment on Eighth Amendment ETS claims reasoning that asthma and other minor health conditions, when viewed with allegations of poor ventilation and chain smoking, was sufficient to establish Helling's objective requirement). 2. Subjective Element To satisfy the subjective requirement of an Eighth Amendment claim, the plaintiff must show that the defendant was deliberately indifferent to the plaintiff's medical needs or safety in exposing him to ETS, “determined in light of the Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 53 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 prison authorities’ current attitudes and conduct[.]” Helling, 509 U.S. at 36. When analyzing deliberate indifference, the Court will consider the adoption of a smoking policy. See Candelaria v. Greifinger, No. 96-CV-0017 (RSP/DS), 1997 WL 176314, at *6 (N.D.N.Y. Apr. 9, 1997) (citation omitted); Colon v. Sawyer, No. 9:03-CV-1018 (LEK/DEP), 2006 WL 721763, at *10 (N.D.N.Y. Mar. 20, 2006) (“Evidence of ongoing policies, notwithstanding plaintiff's claim that they are not rigidly enforced, somewhat undermines any claim of deliberate indifference.”); see also McPherson, 2002 WL 35653924, at *4 (“The mere existence of a DOCCS smoking policy, without more, serves to demonstrate that defendants are ‘aware of facts which can lead to an inference that a risk of harm exists [and] facts exist where a jury can find that they have drawn the inference.’ ”) (citation omitted). It is undisputed that, in January 2018, DOCCS adopted a Smoke Free Policy prohibiting smoking indoors by inmates and staff. Denis v. N.Y.S. Dep't of Corr. Servs., No. 05 CIV.4495, 2006 WL 217926, at *19 (S.D.N.Y. Jan. 30, 2006). Indeed, Plaintiff admits that Clinton C.F. adopted the non-smoking policy. Dkt. No. 80-3 at 42-46. Braxton testified however, that the policy was not enforced and, in fact, sergeants smoked indoors, in violation of the policy. Braxton also maintains that some officers issued only verbal reprimands. Dkt. No. 80-3 at 42-46. Braxton claims that Defendants were aware that the policy was not being enforced because they received his grievances, appeals, and Proposal and disregarded his complaints of “under-enforcement” and ignored his pleas regarding the risks to his “health, safety, and well-being.” Id. at 1, 3, 4-5, 6-7, 12, 14-19. Defendants cite to several cases in support of the conclusion that the “imperfect enforcement of a smoking policy alone may not support a finding of deliberate indifference.” See Dkt. No. 80-1 at 9. The cases are readily distinguishable from the facts at hand. In Enigwe v. Zenk, No. 03-CV-854, 2007 WL 2713849 (E.D.N.Y. Sept. 14, 2007), the court awarded summary judgment to the defendants because the plaintiff failed to proffer evidence that he suffered medical issues related to ETS exposure and failed to demonstrate that he informed officials that the non-smoking policy was being violated. Id. at *3-6. In support of the motion, the defendants submitted a copy of the facility handbook and medical records establishing that the plaintiff never informed the defendants that he was suffering from conditions related to ETS exposure and never sought medical treatment for conditions related to ETS. Id. *11 In Johnson v. Goord, No. 01 CIV. 9587, 2005 WL 2811776, at *6 (S.D.N.Y. Oct. 27, 2005), the court reasoned that summary judgment was appropriate because the defendant submitted evidence in support of the motion including an affidavit with medical opinions related to the plaintiff's medical condition and an affidavit related to the smoking policy. 7 In Davidson v. Desai, No. 03-CV-121S, 2019 WL 125999, at *20-21, 32 (W.D.N.Y. Jan. 8, 2019), aff'd, 964 F.3d 122 (2d Cir. 2020), the Court held a bench trial and received testimony from the plaintiff, a corrections officer, the Superintendent, and medical personnel, related to the implementation of a Smoke-Free Policy at Elmira C.F. and concluded that the evidence established that the defendants implemented a non- smoking policy in good faith. In this case, Defendants’ motion lacks any documentary evidence or sworn testimony related to Braxton's medical history, the smoking policies, the enforcement of the policies, or evidence of disciplinary actions taken against inmates who violate the policies. As discussed supra, as the movants on a motion for summary judgment, Defendants have the burden of proving the absence of an issue of fact as to the Eighth Amendment claims. After carefully considering the matter, the Court finds that genuine issues of material fact exist with regard to the subjective element of the Eighth Amendment analysis. See McPherson v. Coombe, No. 95- CV-6460, 2002 WL 35653924, at *3 (W.D.N.Y. Jan. 2, 2002) (denying summary judgment where the defendants failed to come forward with evidence demonstrating that smoking policies were implemented) (citations omitted); but cf. Islam v. Connolly, No. 07 CIV. 3225, 2011 WL 723568, at *9 (S.D.N.Y. Feb. 16, 2011) (dismissing claims related to ETS where the defendant submitted evidence including a copy of the policies, monthly reports of disciplinary actions, and log books documenting warnings issued to inmates); Denis, 2006 WL 217926, at *20 (finding issues of fact related to the efficacy of the smoking policy where the plaintiff testified that smoking was pervasive in housing units and in inmate bathrooms); see Gill v. Smith, 283 F.Supp.2d 763, 769 (N.D.N.Y. 2003) (denying summary judgment where the plaintiff made requests to the defendant to stop smoking). Thus, Defendants’ motion, on this ground, should be denied. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 54 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 C. Personal Involvement Defendants argue that Braxton has failed to establish that Defendants were personally involved in the alleged Eighth Amendment violations. See Dkt. No. 80-1 at 10. “Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991)). In order to prevail on a section 1983 cause of action against an individual, a plaintiff must show “a tangible connection between the acts of a defendant and the injuries suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). “To be sufficient before the law, a complaint must state precisely who did what and how such behavior is actionable under law.” Hendrickson v. U.S. Attorney Gen., 91-CV-8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994). *12 If the defendant is a supervisory official, a mere “linkage” to the unlawful conduct through “the prison chain of command” (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct. See Polk Cnty. v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501. In other words, supervisory officials may not be held liable merely because they held a position of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). Prior to Iqbal, the Second Circuit held that supervisory personnel may be considered “personally involved” only if they (1) directly participated in the alleged constitutional violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (citing Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986)). 8 Here, Plaintiff alleges that Defendants were personally involved pursuant to the second and fourth Colon factors. 9 See Am. Compl. at ¶¶ 57, 58. Braxton alleges that Defendants failed to remedy the violations after receiving his appeals, grievances, letters, and Proposal. See Am. Compl. at ¶¶ 57, 58. Allegations that a supervisory defendant received letters and grievances, without more, is insufficient to establish personal involvement. Woods v. Goord, No. 01 Civ. 3255, 2002 WL 731691, *7 (S.D.N.Y. Apr. 23. 2002); Johnson v. Wright, 234 F.Supp.2d 352, 363 (S.D.N.Y. 2002) (“[I]f mere receipt of a letter or similar complaint were enough, without more, to constitute personal involvement, it would result in liability merely for being a supervisor, which is contrary to the black-letter law that § 1983 does not impose respondeat superior liability.”) (citations omitted); Zaire v. Artuz, No. 99 CIV. 9817, 2003 WL 230868, at *7 (S.D.N.Y. Feb. 3, 2003) (reasoning that mailing two grievances does not, by itself, establish personal involvement on the part of the defendant in ETS exposure). “[E]ven if a complaint or letter is directly addressed to the defendant and the defendant becomes subjectively aware of the alleged problem, if the defendant lacks the authority to remedy or take action with respect to any constitutional violation, personal involvement cannot be found.” Eldridge v. Williams, No. 10 CIV. 0423, 2013 WL 4005499, at *5 (S.D.N.Y. July 30, 2013) (internal quotation marks and citations omitted). Under the fourth Colon factor, a plaintiff must establish that the defendants were “grossly negligent in supervising subordinates who committed the wrongful acts.” Colon, 58 F.3d at 873. The Second Circuit has “defined gross negligence as conduct that demonstrates a ‘heedless indifference to consequences to another,’ meaning the ‘kind of conduct ... where [the] defendant has reason to know of facts creating a high degree of risk of physical harm to another and deliberately acts or fails to act in conscious disregard or indifference to that risk.’ ” Estate of Chamberlain, 2020 WL 2820176, at *13 (quoting Bryant v. Maffucci, 923 F.2d 979, 985 (2d Cir. 1991)). *13 In this case, Braxton wrote letters to each Defendant in April 2017 and provided copies of his February 2017 grievance and a copy of his proposal for a non-smoking dormitory. Dkt. No. 80-3 at 68, 112; Dkt. No. 1-1 at 23-29. Defendants do not confirm or deny receipt of the letters. Because “liability may be premised upon grossly negligent supervision of others, personally ignoring evidence of constitutional wrongdoings or creating a policy or custom under which unconstitutional practices occurred, or allowing the continuance of such a policy or custom,” Defendants have not established that they are entitled to judgment as a matter of law. Johnson v. Goord, No. 01 CIV. 9587, 2004 WL 2199500, at *17 (S.D.N.Y. Sept. 29, 2004) (denying motion for the supervisory defendants on the ETS exposure claim for failure to demonstrate “entitlement to summary judgment”). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 55 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 In this respect, Defendants failed to produce any documentary evidence or sworn affidavits/testimony demonstrating the absence of genuine issues of material fact. As discussed supra, “where the movant fail[s] to fulfill its initial burden of providing admissible evidence of the material facts entitling it to summary judgment, summary judgment must be denied, even if no opposing evidentiary matter is presented, for the non-movant is not required to rebut an insufficient showing.” Giannullo v. City of New York, 322 F.3d 139, 140–41 (2d Cir. 2003) (citations and internal quotation marks omitted). Because Defendants moved for summary judgment and have not met their initial burden, the burden does not shift to Plaintiff to raise an issue of material fact. See Harvey v. Farber, No. 9:09-CV-00152 (MAD/ GHL), 2011 WL 5373756, at *6 (N.D.N.Y. Sept. 29, 2011) report and recommendation adopted in part, rejected in part, 2011 WL 5373736 (N.D.N.Y. Nov. 4, 2011); see also Gilmore v. Fitzmaurice, No. 9:16-CV-1300 (DNH/TWD), 2018 WL 4178227, at *9 (N.D.N.Y. May 31, 2018) (“[A]lthough not necessarily dispositive, the summary judgment record lacks a declaration or affidavit from [the defendant] denying his alleged personal involvement.”). Accordingly, it is recommended that Defendants’ motion, on this ground, be denied. D. Qualified Immunity In the alternative, Defendants argue that they are entitled to qualified immunity on the Eighth Amendment ETS claim. See Dkt. No. 80-1 at 11-12. Qualified immunity shields federal and state officials from suit “ ‘unless [1] the official violated a statutory or constitutional right that [2] was clearly established at the time of the challenged conduct.’ ” Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “A right is ‘clearly established’ if ‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Beckles v. City of New York, 492 Fed. App'x 181, 182 (2d Cir. 2012) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). To determine whether a state official is entitled to qualified immunity for acts taken during the course of his or her employment, a reviewing court is to determine: “ ‘(1) whether plaintiff has shown facts making out violation of a constitutional right; (2) if so, whether that right was clearly established; and (3) even if the right was clearly established, whether it was objectively reasonable for the [official] to believe the conduct at issue was lawful.’ ” Phillips v. Wright, 553 Fed. App'x 16, 17 (2d Cir. 2014) (quoting Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013)). “Even if the right at issue was clearly established in certain respects, however, an officer is still entitled to qualified immunity if ‘officers of reasonable competence could disagree’ on the legality of the action at issue in its particular factual context.” Doe v. Lima, 270 F.Supp.3d 684, 710 (S.D.N.Y. 2017) (citations omitted), aff'd sub nom. Doe v. Cappiello, 758 Fed. App'x 181 (2d Cir. 2019). *14 Here, the record contains genuine issues of material fact as to the Eighth Amendment claims. As such, the first prong of the analysis has been met. With respect to the second prong, “after Helling, it was clearly established that prison officials could violate the Eighth Amendment through deliberate indifference to an inmate's exposure to levels of ETS that posed an unreasonable risk of future harm to the inmate's health.” Warren v. Keane, 196 F.3d 330, 333 (2d Cir. 1999). “When the contours of a plaintiff's rights were clearly defined at the time of the underlying incident, a public official may still assert the defense of qualified immunity if the official reasonably believed that his or her actions did not violate the plaintiff's rights.” Scott v. Hollins, No. 96-CV-0351C, 2006 WL 1994757, at *9 (W.D.N.Y. July 14, 2006) (citing Warren, 196 F.3d at 333). Defendants argue that it was objectively reasonable to believe that the “imperfect enforcement of Clinton's no-smoking policy did not violate Plaintiff's constitutional rights.” Dkt. No. 80-1 at 11-12. Assuming Braxton's allegations to be true, despite the existence of a no-smoking policy, he was exposed to unreasonably high levels of ETS. Therefore, the Court recommends denying Defendants’ motion, on this ground. See Shepherd v. Hogan, 181 Fed. App'x 93, 97 (2d Cir. 2006) (holding that qualified immunity is inappropriate as to ETS claims under the Eighth Amendment). IV. CONCLUSION WHEREFORE, based on the findings set forth above, it is hereby: Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 56 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No. 80) be DENIED; 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) 10 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., 2020 WL 5752333 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 Defendants filed a Statement of Material Facts. Braxton did not respond but annexed exhibits to his opposition. Dkt. Nos. 86-1 and 87. The parties do not object or challenge the authenticity of the documents. Therefore, to the extent that the “facts” asserted by the parties are supported by the record, the undersigned will consider the facts and relevant exhibits/documents 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 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). 3 In the Answer, Defendants pleaded, inter alia, the affirmative defense that Braxton failed to exhaust his administrative remedies. Dkt. No. 46 at ¶ 100. 4 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided to Plaintiff. 5 In the alternative, Defendants argue, without citing to supporting caselaw, that even assuming Plaintiff submitted grievances, Plaintiff failed to exhaust because he submitted his February 10, 2017 appeal to “select members of the CORC, rather than submitted the appeal directly to the IGRC for forwarding to CORC. See Dkt. No. 80-1 at 6. Because Plaintiff concedes that he did not exhaust his administrative remedies, the Court need not address the issue of whether an appeal sent directly to CORC members complies with the IGP. 6 During Plaintiff's deposition, defense counsel produced a copy of the memorandum. Dkt. No. 80-3 at 102. However, the memorandum was not submitted in support of the motion for summary judgment and is not included anywhere in the record. 7 The court was presented with the second motion for summary judgment related to ETS having denied the defendants’ prior motion because the defendants failed to present evidence demonstrating that the plaintiffs’ Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 57 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 exposure to ETS did not present a sufficiently serious risk to their present or future health so as to rise to the level of an Eighth Amendment violation. Johnson, 2005 WL 2811776, at *1. 8 The Second Circuit has not yet addressed how the Supreme Court's decision in Iqbal affected the standards in Colon for establishing supervisory liability. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) see e.g., Hogan v. Fischer, 738 F.3d 509, 519 n.3 (2d Cir. 2013) (expressing “no view on the extent to which [Iqbal] may have heightened the requirements for showing a supervisor's personal involvement with respect to certain constitutional violations[.]”) (citing Grullon, 720 F.3d at 139). Courts in this District have concluded that “the Colon analysis still applies where the constitutional claim asserted does not require a showing of discriminatory intent, ‘insofar as it is consistent with the particular constitutional provision alleged to have been violated.’ ” Montanez v. City of Syracuse, No. 16-CV-0550, 2019 WL 315058, *18 (N.D.N.Y. Jan. 23, 2019) (internal quotation marks and citation omitted). Here, Plaintiff's Eighth amendment deliberate indifference claims do not require a showing of discriminatory intent. Therefore, the Court will apply the Colon factors. Santana v. Racette, No. 9:17-CV-00102 (BKS/ML), 2020 WL 3412728, at *8 (N.D.N.Y. June 22, 2020) (citation omitted). 9 Defendants do not address the fourth Colon factor in their motion for summary judgment. 10 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. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 58 of 300
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 5751172 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Benjamin BRAXTON, a/k/ a Obed/Edom Braxton, Plaintiff, v. Kevin BRUEN, Deputy Commissioner of Counsel, et al., Defendants. 9:17-cv-1346 (BKS/ML) | Signed 09/25/2020 Attorneys and Law Firms Plaintiff pro se: Benjamin Braxton, 16-A-2314, Clinton Correctional Facility, P.O. Box 2000, Dannemora, NY 12929. For Defendants: Hon. Letitia James, Joshua E. McMahon, Esq., New York State Attorney General, The Capitol, Albany, NY 12224. MEMORANDUM-DECISION AND ORDER Brenda K. Sannes, United States District Judge: *1 Plaintiff Benjamin Braxton, a New York State inmate, commenced this civil rights action asserting claims under 42 U.S.C. § 1983 based on his alleged exposure to unreasonable levels of secondhand smoke during his incarceration at Clinton Correctional Facility. (Dkt. No. 42). On February 21, 2020, Defendants filed a motion for summary judgment. (Dkt. No. 80). Plaintiff has responded in opposition to the motion. (Dkt. Nos. 86, 87). This matter was referred to United States Magistrate Judge Miroslav Lovric who, on August 24, 2020, issued a Report-Recommendation recommending that Defendants’ motion be denied. (Dkt. No. 88). 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. 88, at 31). No objections have been filed. 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, 229 (N.D.N.Y. 2012) (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes to 1983 Amendment). Having reviewed the Report-Recommendation for clear error and found none, the Court adopts the Report- Recommendation in its entirety. For these reasons, it is ORDERED that the Report-Recommendation (Dkt. No. 88) is ADOPTED in its entirety; and it is further ORDERED that Defendants’ motion for summary judgment (Dkt. No. 80) is DENIED; 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. All Citations Not Reported in Fed. Supp., 2020 WL 5751172 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 59 of 300
Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2018 WL 4635708 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Troy CAMPBELL, Plaintiff, v. Joseph PRUE and David Hallenbeck, Defendants. No. 9:16-CV-0004 (MAD/CFH) | Signed 07/03/2018 Attorneys and Law Firms Troy Campbell, 13-A-0601, Orleans Correctional Facility, 3531 Gaines Basin Road, Albion, New York 14411, Plaintiff pro se. Attorney General for the State of New York, OF COUNSEL: KEITH J. STARLIN, ESQ., Assistant Attorney General, The Capitol, Albany, New York 12224, Attorney for defendants. REPORT-RECOMMENDATION AND ORDER 1 Christian F. Hummel, U.S. Magistrate Judge *1 Plaintiff pro se Troy Campbell (“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, alleging that Superintendent (“Supt.”) David Hallenbeck and Corrections Officer (“C.O.”) Joseph Prue – who, at all relevant times, were employed at Hale Creek Correctional Facility (“Hale Creek”) – violated his constitutional rights under the Eighth Amendment. See Dkt. No. 17 (“Sec. Am. Compl.”). Presently pending before the Court is defendants' Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). Dkt. No. 48. Plaintiff opposed defendants' motion, 2 and defendants filed a reply. Dkt. Nos. 51, 52. For the following reasons, it is recommended that defendants' motion be granted. I. Background A. Plaintiff's Recitation of the Facts The facts are related herein in the light most favorable to plaintiff as the nonmoving party. See subsection II.A. infra. Plaintiff alleges that Supt. Hallenbeck and C.O. Prue were aware that non-party inmate Deandre Moore was a “violent person and ... affiliated with the Bloods.” Sec. Am. Compl. at 3. Plaintiff informed Supt. Hallenbeck and C.O. Prue “numerous times” that inmate Moore threatened and harassed him, and that inmate Moore stated that “he was about to cut [plaintiff].” Id. Supt. Hallenbeck and C.O. Prue told plaintiff that “everything [was] going to be alright” and that nothing would happen to him. Id. At an unspecified time, inmate Moore assaulted plaintiff with a knife. Id. at 5. Plaintiff sustained injuries to the left side of his neck, and received fourteen stitches. Id. B. Defendants' Recitation of the Facts In support of their Motion for Summary Judgment, defendants filed a Statement of Material Facts. 3 Plaintiff transferred to Hale Creek on June 1, 2015. Dkt. No. 48-1 ¶ 70. On September 10, 2015, inmate Moore interrupted plaintiff's conversation with another non-party inmate in the inmate cafeteria, and told plaintiff to “shut the F up,” and called him a “pussy.” Id. ¶¶ 14, 16. Plaintiff called inmate Moore a “pussy,” and inmate Moore stated, “we're going to see who's a pussy when we get back to the dorm.” Id. ¶ 16. Prior to September 10, 2015, plaintiff had not have any confrontations or arguments with inmate Moore. Id. ¶¶ 74, 75. Plaintiff contends that on his return to the dorm, he spoke with a non-party DOCCS official named “Soto,” and asked him to inform Supt. Hallenbeck about his verbal argument with inmate Moore. Id. ¶ 19. At his deposition, plaintiff testified that he informed Sergeant (“Sgt.”) Soto that during the verbal argument, inmate Moore stated that “he was going to cut [plaintiff],” and he asked Sgt. Soto to get Supt. Hallenbeck so that plaintiff could speak with him. Id. ¶ 21. *2 After leaving the inmate cafeteria, plaintiff and inmate Moore returned to their shared housing unit. Dkt. No. 48-1 ¶ 23. Although they walked within the same group of inmates, plaintiff and inmate Moore did not interact. Id. ¶ 24. On that day, C.O. Prue was stationed at the main door leading into the C-2 housing unit. Id. ¶ 25. Plaintiff contends that he informed C.O. Prue that inmate Moore stated that he was “going to cut [him],” and “about the situation” with inmate Moore. Id. ¶ 26. Plaintiff claims that C.O. Prue told him “don't worry about it,” “[a]in't nothing going to happen,” “these guys want to go home – do their program and go Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 60 of 300
Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 home.” Id. ¶ 27. Plaintiff testified at his deposition that he did not have any further conversation with C.O. Prue. Id. ¶ 28. After plaintiff returned to his cube, he observed C.O. Prue in the C-2 housing unit dayroom/television room looking at the television. Id. ¶ 30. Soon after, inmate Moore called out to plaintiff from the doorway of the housing unit's restroom. Id. ¶ 32. Plaintiff voluntarily left his cube, and entered the restroom with inmate Moore. Id. ¶ 33. Plaintiff was in the bathroom with inmate Moore for approximately three seconds when inmate Moore cut him with a sharp object. Id. ¶ 35. Another inmate immediately intervened and placed himself between plaintiff and inmate Moore, at which time plaintiff hit inmate Moore with a garbage can lid. Id. ¶ 36. After the altercation, plaintiff remained in the inmate restroom and wiped the blood away from his cut. Dkt. No. 48-1 ¶ 38. Plaintiff then attended his afternoon Alcohol and Substance Abuse Treatment (“ASAT”) program class without informing C.O. Prue or any other Hale Creek official about the altercation, his injuries, or that he wanted protection from inmate Moore. Id. ¶¶ 39, 41. The ASAT teacher questioned why plaintiff had band aids on his neck, and plaintiff informed the teacher that he had been hurt playing basketball. Id. ¶ 42. Plaintiff did not mention the altercation with inmate Moore, or that he had been cut by a knife. Id. Inmate Moore attended the same ASAT class as plaintiff, and plaintiff chose to move his seat during the class to sit with inmate Moore. Id. ¶¶ 43, 44. Plaintiff and inmate Moore spoke with each other without any conflict. Id. ¶ 45. The ASAT teacher eventually separated plaintiff and inmate Moore once she noticed that they were not talking about school work. Id. ¶ 46. Plaintiff then asked for permission to use the bathroom and speak with a corrections officer. Id. ¶ 47. Plaintiff spoke with non-party C.O. Borner, and informed him that he had scratched himself on a locker in his dorm and did not know he had a visible scratch until other inmates told him. Id. ¶ 48. Plaintiff did not inform C.O. Borner of the altercation with inmate Moore. Id. ¶ 49. C.O. Borner called a DOCCS nurse and Sgt. Soto to report the injury, and sent plaintiff to the infirmary. Id. ¶ 50. Plaintiff told DOCCS officials at the infirmary that he had cut himself on a locker inside his cube. Id. ¶ 51. Plaintiff signed an “Inmate Injury Report,” which stated that “[t]he cause of my cut that my locker inside my cube cut me when I was going for my net bag. I cut myself on the locker inside my cube but everything good I'm alright.” Id. ¶ 52. DOCCS officials sent plaintiff to Albany Medical Center for further medical treatment. Id. ¶ 53. Hale Creek began an investigation into the source of the cut, and interviewed plaintiff about what had happened. Id. ¶ 54. During the interview, plaintiff maintained to Sgt. Soto that he had cut himself opening a locker, but after further questioning, plaintiff admitted that he had been involved in an altercation with inmate Moore. Id. ¶ 56. DOCCS officials also interviewed inmate Moore, and discovered that he had sustained superficial injuries in the September 10, 2015 altercation. Id. ¶ 57. Pursuant to the investigation, plaintiff submitted a “Free Will Statement,” which made no mention that he had ever requested protection from inmate Moore prior to the September 10, 2015 altercation or had informed anyone of an alleged threat to him by inmate Moore. Dkt. No. 48-1 ¶ 59. Plaintiff and inmate Moore were both charged with violating DOCCS inmate rules, and plaintiff was issued a misbehavior report charging him with fighting (100.13). Id. ¶¶ 60, 61. On September 11, 2015, plaintiff was transferred to Marcy Correctional Facility where he remained until February 4, 2016. Id. ¶¶ 63, 64. On September 16, 2015, a Tier III Superintendent's hearing was held at Marcy regarding the charges stemming from the September 10, 2015 altercation. Id. ¶ 65. During plaintiff's testimony, he did not mention that he told Sgt. Soto, C.O. Prue, Supt. Hallenbeck, or any other DOCCS official about the September 10, 2015 lunchtime verbal argument with inmate Moore, or any alleged threats by inmate Moore. Id. ¶ 67. He testified that he did not expect inmate Moore to attack him on September 10, 2015, did not mention inmate Moore's alleged threat to “cut” or injure him, and testified that when he entered the bathroom, he did not believe that there was going to be any physical violence. Id. ¶ 68. At the conclusion of the hearing, the hearing officer found plaintiff guilty and sentenced him to seven days of pre-hearing confinement that he had already served, as well as mandatory counseling. Id. ¶ 69. II. Discussion 4 A. Legal Standards 1. Summary Judgment Standard *3 “A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party has the burden of showing the absence of disputed material facts by providing the Court with portions of “pleadings, depositions, answers to interrogatories, and admissions on file, together with the Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 61 of 300
Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 affidavits, if any,” which support the motion. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it may affect the outcome of the case as determined by substantive law, such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “In determining whether summary judgment is appropriate, [the Court will] resolve all ambiguities and draw all reasonable inferences against the moving party.” Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997). To avoid summary judgment, a non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Carey v. Crescenzi, 923 F.2d 18, 19 (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ) (internal quotation marks omitted). A non-moving party must support such assertions by evidence showing the existence of a genuine issue of material fact. See id. “When no rational jury could find in favor of the non- moving party because the evidence to support is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Services, Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. 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). 2. N.D.N.Y Local Rule 7.1(a)(3) Local Rule 7.1(a)(3) requires a party moving for summary judgment to file and serve a Statement of Material Facts. See N.D.N.Y. L.R. 7.1(a)(3). “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.” Id. The opposing party is required to file a response to the Statement of Material facts “admitting and/or denying each of the movant's assertions in matching numbered paragraphs.” Id. “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.” Id. (emphasis omitted). Defendants argue that because plaintiff has failed to file a response to their Statement of Material Facts, the facts set forth therein must be deemed admitted. See Dkt. No. 52 (“Def. Reply”) at 4-5. Thus, defendants contend that “[g]iven the dispositive nature of those facts, plaintiff has clearly failed to raise any genuine, triable question of relevant fact as to the claims covered by defendants' motion ... and those claims should be dismissed.” Id. at 5. The undersigned is not required to “perform an independent review of the record to find proof of a factual dispute.” Prestopnik v. Whelan, 253 F.Supp.2d 369, 371 (N.D.N.Y. 2003) (concluding that the “plaintiff's suggestion that the transcript and videotape of the [incident] be reviewed to identify support for her Statement of Material Facts Not in Dispute does not cure her failure to comply with Rule 7.1(a)(3).”). Although the defendant argues, and the Local Rules provide, that the Court shall deem admitted any facts the nonmoving party fails to “specifically controvert,” pro se plaintiffs are afforded special solicitude in this District and within the Second Circuit. N.D.N.Y. L.R. 7.1(a)(3); Def. Reply at 4-5; see subsection II.A. supra. Accordingly, in deference to plaintiff's pro se status, the Court will independently review the record when evaluating defendants' Motion for Summary Judgment, and “treat plaintiff's opposition as a response to” defendants' Statement of Material Facts. Johnson v. Lew, No. 1:13- CV-1072 (GTS/CFH), 2017 WL 3822047, at *2 (N.D.N.Y. Aug. 30, 2017) (“Out of special solicitude to Plaintiff as a pro se civil rights litigant, however, the Court will treat his opposition as a response to Defendant's Rule 7.1 Statement, carefully reviewing it for any record-supported disputation of Defendant's Rule 7.1 Statement.”); see Perry v. Ogdensburg Corr. Facility, No. 9:10-CV-1033 (LEK/TWD), 2016 WL 3004658, at *1 (N.D.N.Y. May 24, 2016) (determining that “although [p]laintiff failed to respond to the statement of material facts filed by [d]efendants as required under Local Rule 7.1(a)(3), the Court would invoke its discretion to review Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 62 of 300
Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 the entire record when evaluating the parties' respective Motions for summary judgment.”). B. Exhaustion *4 As a threshold matter, defendants argue that plaintiff has failed to exhaust his administrative remedies. See Dkt. No. 48-17 (“Def. Mem. of Law”) at 6-13. Plaintiff contends that he filed a grievance concerning the September 10, 2015 incident while housed at Marcy, but “they denied [his] grievance saying that [he] couldn't file[ ] a grievance at Marcy because the incident didn't happen there[.]”. Dkt. No. 51 (“Pl. Opp.”) at 5-6. It is undisputed that on September 11, 2015, plaintiff was transferred to Marcy where he remained until February 4, 2016. Dkt. No. 48-1 ¶ ¶ 141, 142. Defendants contend that during that time period, plaintiff did not file any grievances to the Marcy Inmate Grievance Resolution Committee (“IGRC”) related to claims against Supt. Hallenbeck or C.O. Prue, nor did send such grievances to the Hale Creek IGRC. Id. ¶¶ 144, 145. 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. See 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, 82, 126 S.Ct. 2378, 165 L.Ed.2d 368 (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, 122 S.Ct. 983. 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, 122 S.Ct. 983. 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. See Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (internal citation omitted). Although the Supreme Court has deemed exhaustion mandatory, the Second Circuit has recognized that “certain caveats apply.” Ruggiero v. Cty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006) (citation omitted). The Supreme Court recently held that “[c]ourts may not engraft an unwritten ‘special circumstances’ exception onto the PLRA's exhaustion requirement.” Ross v. Blake, ––– U.S. ––––, 136 S.Ct. 1850, 1862, 195 L.Ed.2d 117 (2016). Thus, the “special circumstances” exception in Hemphill v. New York, 680 F.3d 680, 686 (2d Cir. 2004) is no longer consistent with the statutory requirements of the PLRA. Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016). 5 Although Ross eliminates the “special circumstances” exception, courts must still consider the PLRA's “textual exception to mandatory exhaustion.” Ross, 136 S.Ct. at 1858. Under this exception, courts must determine whether administrative remedies were “available” to a prisoner. Id. The Supreme Court identified three circumstances where administrative remedies may be unavailable to a prisoner. 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. at 1859 (citing Booth v. Churner, 532 U.S. 731, 736, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) ). “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Lastly, administrative remedies are unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. 1. Did Plaintiff Exhaust his Administrative Remedies? 6 *5 In support of their motion, defendants have proffered the declarations of Inmate Grievance Program Supervisor (“IGPS”) Gregory Wesley (Hale Creek), IGPS Erin Pfendler (Marcy), and Assistant Director of the DOCCS Inmate Grievance Program Rachael Seguin. See Dkt. Nos. 48-4 (“Wesley Decl.”); 48-6 (“Pfendler Decl.”); 48-8 (“Seguin Decl.”). Both IGPS Wesley and IGPS Pfendler declared that plaintiff did not file any grievances (1) alleging Supt. Hallenbeck or C.O. Prue failed to protect him from an attack by another inmate; (2) concerning an attack on him by another inmate; or (3) regarding alleged threats against him by another inmate. See Wesley Decl. ¶ 20; Pfendler Decl. ¶ 20. Moreover, Ms. Seguin declared that plaintiff never filed an appeal to CORC for any grievances he filed while housed at either Hale Creek or Marcy. See Seguin Decl. ¶ 20. Plaintiff has not proffered any evidence that he filed a grievance relating to the September 10, 2015 incident, or otherwise exhausted his administrative remedies. Although he alleges that he filed a grievance at Marcy, plaintiff does not state when he filed such grievance or whether that grievance contained allegations Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 63 of 300
Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 against Supt. Hallenbeck and C.O. Prue. See Pl. Opp. at 5-6. Further, plaintiff has not provided a copy of the alleged grievance or the Marcy IGRC's denial of that grievance. See Smith v. Kelly, 985 F.Supp.2d 275, 189 (N.D.N.Y. 2013) (granting the defendants' motion for summary judgment on the issue of exhaustion where plaintiff failed to “identify the name of the ‘IGRC supervisor’ who purportedly told him that a new prisoner does not file a grievance at Auburn C.F. if it pertains to the prisoner's previous facility, [and failed to] specify the date, means or location of this purported communication.”). Plaintiff testified that he was familiar with the grievance process and had access to grievance offices at both facilities. See Pl. Dep. at 15-17. Moreover, plaintiff stated that he had access to Directive 4040 – the DOCCS directive detailing the inmate grievance program – which states that a “complaint may only be filed at the facility where the inmate is housed even if it pertains to another facility.” Dkt. Nos. 48-5 at 7, 48-7 at 7 (emphasis added). Thus, plaintiff's conclusory allegation that the Marcy IGRC denied his grievance will not suffice to withstand summary judgment. See Khudan v. Lee, No. 12-CV-8147(RJS), 2015 WL 5544316, at *6 (S.D.N.Y. Sept. 17, 2015) (“Plaintiff's accusations, which ‘stand alone’ and are ‘unsupported,’ are insufficient to withstand summary judgment.”) (quoting Bolton v. City of New York, No. 13-CV-5749(RJS), 2015 WL 1822008, at *2 (S.D.N.Y. Apr. 20, 2015) ). Moreover, plaintiff's transfer from Hale Creek to Marcy does not excuse his failure to exhaust, as the grievance process is identical in all New York State-run facilities. See Hartry v. Cnty. of Suffolk, 755 F.Supp.2d 422, 434 (E.D.N.Y. 2010) (“[S]ome courts [ ] have found that transfer within correctional facilities governed by the same governmental agency will not excuse exhaustion, regardless of whether the inmate had an opportunity to pursue the remedy while at the facility where the claim arose.”) (collecting cases); Dabney v. Pegano, 604 F. App'x 1, 5 (2d Cir. 2015) (summary order) (“As for the transfer to Clinton, even a partial favorable grievance resolution does not excuse failing to exhaust the IGP so long as some remedy remains available.”) (internal quotation marks and citation omitted); Corye v. Carr, No. 9:08-CV-46 (LEK/GJD), 2010 WL 396363, at *7 (N.D.N.Y. Jan. 26, 2010) (“[G]enerally, transfer does not excuse the exhaustion requirement.”); Wesley Decl.; Pfendler Decl.; see also Dkt. Nos. 48-5, 48-7 (detailing Directive 4040 concerning the Inmate Grievance Program). Plaintiff has failed to proffer evidence that he filed grievances relating to the September 10, 2015 incident, and his bare assertions that Marcy prison officials denied his grievance are insufficient to render the grievance process unavailable. Thus, defendants have met their burden of showing that plaintiff has failed to exhaust his administrative remedies. Accordingly, it is recommended that defendants' Motion for Summary Judgment be granted. C. Failure to Protect Alternatively, defendants move to dismiss on the basis that plaintiff fails to state a prima facie failure to protect claim. See Def. Mem. of Law at 13-24. “The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody.” Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) (citing Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) ). “[A] state prison guard's deliberate indifference to the consequences of his conduct for those under his control and dependent upon him may support a claim under § 1983.” Morales v. New York State Dep't of Corr., 842 F.2d 27, 30 (2d Cir. 1988). To state a claim for failure to protect under the Eighth Amendment, a plaintiff must demonstrate that (1) he or she was incarcerated under conditions posing a substantial risk of serious harm; and (2) prison officials acted with deliberate indifference to that risk and the inmate's safety. See Farmer, 511 U.S. at 836, 114 S.Ct. 1970. As to the first prong, the deprivation must be “sufficiently serious,” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Wilson v. Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (internal quotation marks omitted) ), and “contemplate[ ] ‘a condition of urgency, one that may produce death, degeneration, or extreme pain.’ ” Id. (quoting Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) ). “A substantial risk of serious harm can be demonstrated where there is evidence of a previous altercation between a plaintiff and an attacker, coupled with a complaint by plaintiff regarding the altercation or request by plaintiff to be separated from the attacker.” Gilmore v. Rivera, No. 13 Civ. 6955(RWS), 2014 WL 1998227, at *3 (S.D.N.Y. May 14, 2014); see Rivers v. Spinnella, No. 9:09-CV-309 (FJS/RFT), 2010 WL 6428486, at *5 (N.D.N.Y. Nov. 4, 2010) (granting the defendants' motion for summary judgment where “there [were] no specific facts, nor even allegations, that indicate the [d]efendant was aware that [p]laintiff faced a substantial risk of serious harm until the altercation had already started.”). 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Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 *6 As to the second prong, the plaintiff must demonstrate that prison officials actually knew of and disregarded an excessive risk of harm to the inmate's health and safety. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970. The defendant “must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. The plaintiff must “show that the defendants actually inferred from that disclosure that a substantial risk of serious harm existed.” Murray v. Goord, 668 F.Supp.2d 344, 359 (N.D.N.Y. 2009). Negligence by a prison official is insufficient to amount to a constitutional violation. See Hathaway, 37 F.3d at 66 (“Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm.”). Defendants rely on Desulma v. City of New York in support of their argument that plaintiff has failed to demonstrate a prima facie failure to protect claim. See Def. Mem. of Law at 16-17. In Desulma, the plaintiff alleged that two inmates made unspecified threats and racial insinuations toward him, and that the defendant prison official witnessed such threats. Desulma v. City of New York, No. 98 Civ. 2078(RMB) (RLE), 2001 WL 798002, at *1 (S.D.N.Y. July 6, 2001). 7 The plaintiff claimed that he requested protection from the defendant officer, but was told “to defend himself.” Id. The plaintiff requested protective measures from a second prison official, but his complaints were ignored. Id. The inmates again began to “bother” plaintiff and told him that he “smell[ed].” Id. Later, the plaintiff submitted changes to his deposition transcript wherein he claimed that the inmates stated, “kill this negro, get you, we are going to get you stinky.” Id. The inmates then “slashed [the plaintiff's] face with a weapon, leaving a permanent scar.” Id. The Desulma Court found that the plaintiff failed to establish either prong of the failure to protect analysis. As to the first prong — whether plaintiff established that he was incarcerated under conditions posing a substantial risk of serious harm — the Court held that the plaintiff failed to demonstrate that “risk he faced was substantial,” and, that to the extent that such risk existed, the plaintiff failed to show that it “was one of serious harm.” Desulma, 2001 WL 798002, 1 at *6. The Court noted that the plaintiff had no prior altercations with the inmates who had attacked him, and that he testified that he had never complained about them or requested separation from them before. Id. The Court also concluded that the inmates' statements that the plaintiff “was going to pay a price” and that “he smell[ed]” did not establish that the inmates posed a substantial threat to the plaintiff because “verbal statements alone do not indicate a substantial threat of serious harm.” Id. at *7. The Court also discredited the revision of the plaintiff's deposition transcript, stating that “although [the plaintiff] changed his testimony to reflect that the inmates had actually threatened him with a knife, that faction alone would not be enough to establish a substantial risk.” Id. As to the second prong — whether the plaintiff established that the defendants acted with the necessary state of mind — the Desulma Court found that although “the record supports a conclusion that [the defendant] was aware that [the plaintiff] feared his attackers because [the plaintiff] requested protective measures ... and because [the defendant] witnessed the verbal interaction,” given the lack of prior history between the parties and the nature of the verbal threats, the defendant “had no reason to infer the existence of a threat of harm, much less a life-threatening danger.” Desulma, 2001 WL 798002, at *7. The Court held that the record contained no evidence demonstrating that the defendant “deliberately disregarded” the plaintiff's safety, or otherwise had an opportunity to intervene in the attack. Id. At best, the defendant's conduct was negligent, which is not a culpable mental state for liability. Id. Thus, the Desulma Court recommended that the defendant's motion for summary judgment be granted. Id. at *8. *7 Here, as in Desulma, plaintiff contends that inmate Moore threatened and harassed him on one occasion in the inmate cafeteria on September 10, 2015. See Sec. Am. Compl. at 3. Plaintiff's claims in his second amended complaint that on September 10, 2015 inmate Moore threatened to cut him, see id., directly contradict plaintiff's sworn deposition testimony, as well as plaintiff's testimony at his Tier III disciplinary hearing. As defendants note, plaintiff testified as to the events of the September 10, 2015 lunch hour: Q: What was the fight about with Inmate Moore in cafeteria on September 10 th of 2015? A: I was talking to this other inmate named Robinson, and we was talking about girls and stuff like that. So [i]nmate Moore jumped in our conversation and told me to shut up. Shut the F. up. And called me a pussy. So I called him a pussy back. Then he was like, we're going to see who's a pussy when we get back to the dorm. Q: Did he say anything else at that time? Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 65 of 300
Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 A: Nope. Q: That's all he said? A: That's all he said. Dkt. No. 48-16 (“Pl. Dep.”) at 40-41. Such statements are consistent with plaintiff's testimony at the September 16, 2015 Tier III disciplinary hearing, wherein plaintiff testified that, inmate Moore “jumped in on [he and inmate Robinson's] conversation. I told him to mind his business. He called me a pussy. I called him a pussy back. And he said you going to see who a pussy when we get back to the dorms.” Dkt. No. 48-14 at 6. Moreover, plaintiff's signed “Free Will Statement” does not mention that inmate Moore threatened to cut him with a knife. See Dkt. No. 48-12 at 10. Irrespective of the inconsistencies in plaintiff's narrative, “verbal statements alone do not indicate a substantial threat of serious harm,” and plaintiff's allegation that inmate Moore threatened to cut him, if credited, does not by itself establish a substantial risk. Desulma, 2001 WL 798002, at *7. As in Desulma, plaintiff had no prior altercations with inmate Moore, see Desulma, 2001 WL 798002, at *6; Pl. Dep. at 29, 41; in fact, the record indicates that plaintiff and inmate Moore resided in the same housing unit from June 2015 until September 2015, attended the same ASAT program for two to three months without an altercation, and generally “got along.” Pl. Dep. at 41, 42; see Peterson v. Johnson, No. 9:10- CV-0026(FJS/DEP), 2011 WL 7640124, at *11 (N.D.N.Y. Aug. 3, 2011) (dismissing the plaintiff's failure to protect claim where “plaintiff does not allege facts suggesting that there was any prior history between him and inmate Green, or that there was any other reason for defendant to know that Green posed a threat to plaintiff's safety.”). Plaintiff testified that he was “surprise[d]” that inmate Moore attacked him, and that he entered the bathroom after the “situation” in the inmate cafeteria because he thought that inmate Moore “wanted to talk to [him] ... [but] he just ... pulled out a razor and cut [him].” Id. at 42. Plaintiff testified that he would not have entered the bathroom alone had he thought inmate Moore was going to attack him. Id. at 43. Moreover, after the assault, plaintiff went to his ASAT class, moved his seat to sit next to inmate Moore, and on three separate occasions failed to tell DOCCS officials that he inmate Moore had cut him with a razor when questioned about the cut on his neck. See Dkt. No. 48-13 at 2-5. Thus, as plaintiff readily admits that he, on his own volition, entered the restroom with inmate Moore after the lunchtime argument, and that he did so under the belief that the two men were “going to talk it out,” Pl. Dep. at 41-43, the record does not support a conclusion that plaintiff was in a “condition of urgency [ ] that may produce death, degeneration, or extreme pain” under the first prong of the analysis. Hathaway, 37 F.3d at 66 (internal quotation marks and citation omitted). *8 Moreover, even assuming that plaintiff had established that he was incarcerated under conditions posing a substantial risk of serious harm, he has failed to demonstrate that Supt. Hallenbeck or C.O. Prue actually knew of and disregarded an excessive risk of harm to his health and safety. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Plaintiff's conclusory allegations that he informed Supt. Hallenbeck and C.O. Prue “numerous times” that inmate Moore threatened and harassed him, and that inmate Moore threatened to “cut” him are unsupported by the record. See Sec. Am. Compl. at 3. As a threshold matter, defendants argue that Supt. Hallenbeck had no personal involvement in the events at issue in this lawsuit. See Def. Mem. of Law at 24-25. The undersigned agrees. “[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.” Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 (2d Cir. 1991) ). Assertions of personal involvement that are merely speculative are insufficient to establish a triable issue of fact. See e.g., Brown v. Artus, 647 F.Supp.2d 190, 200 (N.D.N.Y. 2009). Plaintiff testified that he only spoke with Supt. Hallenbeck one time approximately two weeks after he arrived at the facility during inmate orientation. See Pl. Dep. at 23-24. 8 On that date, Supt. Hallenbeck gave a speech to a group of inmates in the ASAT housing unit, and plaintiff did not have a personal conversation with him. Id. at 24. In fact, plaintiff noted that he had never had a one-on-one persona conversation with Supt. Hallenbeck. Id. The record is clear that the only interaction plaintiff had with Supt. Hallenbeck on September 10, 2015 is that he observed Supt. Hallenbeck standing by the mess hall. Id. at 61. Plaintiff did not approach Supt. Hallenbeck, nor did he attempt to engage him in conversation concerning inmate Moore's alleged threats. See id. at 61-62. Further, there is no indication that non-party Sgt. Soto ever spoke with Supt. Hallenbeck, and Sgt. Soto never informed plaintiff that he spoke with Supt. Hallenbeck on his behalf. See id. at 60; Dkt. No. 48-2 (“Hallenbeck Decl.”) ¶ 7 (“At no time prior to the occurrence of the September 10, 2015 altercation ..., or at any time since, has Sgt. Soto, (or anyone else) ever informed me that plaintiff told him (or anyone else) of any threat made to Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 66 of 300
Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 plaintiff, or danger posed to [plaintiff], by inmate Moore.”). Supt. Hallenbeck declared that [a]t no time prior to the ... September 10, 2015 altercation between inmate [ ] Moore and plaintiff ... was [he] ever told, or otherwise made aware of any threat(s) made to plaintiff by inmate [ ] Moore, of any danger that inmate Moore may have posed to plaintiff, or of any tension, hostility or conflict between inmate [ ] Moore and plaintiff. Hallenbeck Decl. ¶ 8. Supt. Hallenbeck did not witness the assault as he was not present in the inmate bathroom, or anywhere in the C-2 housing unit, at the time of the attack. Id. ¶ 4. Thus, the record is clear that Supt. Hallenbeck was not aware of the lunch hour conversation between plaintiff and inmate Moore, and, therefore, could not have inferred that such conversation would result in an assault. See Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Therefore, plaintiff has failed to establish that Supt. Hallenbeck was personally involved in his failure to protect claim. *9 As to C.O. Prue, affording plaintiff special solicitude, plaintiff contends that after returning to his dorm from the inmate cafeteria, he informed C.O. Prue that inmate Moore threatened him. See Pl. Dep. at 36. As in Desulma, although C.O. Prue may have been aware that inmate Moore threatened and/or threatened to cut plaintiff, 9 given the lack of prior history between the parties, and the nature of the verbal threats, C.O. Prue “had no reason to infer the existence of a threat of harm, much less a life-threatening danger.” Desulma, 2001 WL 798002, at *7. C.O. Prue declared that prior to the September 2015 altercation, he had “never overheard or was aware of any verbal confrontation between inmate Moore and plaintiff; never saw or knew of any physical confrontation between inmate Moore and plaintiff; and never heard or was aware of any threats communicated to plaintiff by inmate Moore.” Prue Decl. ¶ 24. Plaintiff's testimony that after informing C.O. Prue of inmate Moore's threat, he returned to his cube “feeling nervous and scared” is contradicted by the record, which demonstrates that soon after the alleged conversation with C.O. Prue, plaintiff voluntarily left his cell to enter the restroom with inmate Moore under the belief that they were going to talk. See Pl. Dep. at 41-43. Thus, crediting plaintiff's allegations, although C.O. Prue may have had knowledge of inmate Moore's threats, there is no indication that C.O. Prue “disregard[ed] that risk by failing to take reasonable measures to abate the harm.” Hayes v. New York City Dep't. of Corr., 84 F.3d 614, 620 (2d Cir. 1996). To the extent that plaintiff contends that C.O. Prue failed to intervene in the September 10, 2015 altercation, this argument must fail. To establish liability under a failure to intervene theory, “a plaintiff must prove the use of excessive force by someone other than the individual and that the defendant under consideration: [ (]1) possessed actual knowledge of the use by another of excessive force; [ (]2) had a realistic opportunity to intervene and prevent the harm from occurring; and [ (]3) nonetheless disregarded that risk by intentionally refusing or failing to take reasonable measures to end the use of excessive force.” Cicio v. Lamora, No. 09:CV-431, 2010 WL 1063875, at *8 (N.D.N.Y. Feb. 24, 2010) (citing Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001) ). As defendants point out, the record is clear that C.O. Prue did not have a realistic opportunity to intervene and prevent inmate Moore from cutting plaintiff with a razor. See Def. Mem. of Law at 24. C.O. Prue was not present in the bathroom when the September 10, 2015 altercation occurred. Prue Decl. ¶ 16. Although C.O. Prue does not recall where he was exactly when the assault occurred, he declared that he “was definitely on/in said housing unit at that time.” Id. ¶ 10. Insofar as plaintiff contends that C.O. Prue “wasn't on his assigned post which suppose [sic] to be at the desk,” Pl. Opp. at 4-5, plaintiff does not proffer evidence of DOCCS rules or regulations that require a corrections officer to be seated at the officer's desk in their assigned location. See Def. Reply at 10-11. In fact, C.O. Prue declared that his “post” was the C-2 housing unit, and while on duty, an officer is required to undertake periodic rounds and move freely around the unit. Prue Decl. ¶¶ 12, 16. Moreover, even if C.O. Prue had been sitting at the officer's desk in the main room of the C-2 housing unit, he would not have been able to intervene in the altercation because “someone sitting/stationed at the officer's desk in the main common room would not be able to see more into said restroom due to the viewing angle from the desk.” Prue Decl. ¶ 13. C.O. Prue stated that the view from the desk into the inmate restroom is obstructed by the restroom's exterior wall. Id. To the extent that C.O. Prue was present in the television room, his view into the restroom still would have been obstructed. See id. at 14. Moreover, plaintiff testified that the assault occurred within three seconds of him walking into the bathroom, thereby preventing C.O. Prue from having a “realistic opportunity” Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 67 of 300
Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 to intervene in the assault. See Cicio, 2010 WL 1063875, at *8; Pl. Dep. at 43. Therefore, insofar as plaintiff contends that C.O. Prue failed to intervene in the September 10, 2015 altercation, such claim must fail. *10 Accordingly, as plaintiff fails to demonstrate a prima facie failure to protect claim, it is recommended that defendants' motion be granted. D. Qualified Immunity Defendants argue that, even if plaintiff's Eighth Amendment claim is substantiated, they are entitled to qualified immunity. Def. Mem. of Law at 26-28. Qualified immunity shields public officials from being sued for conduct undertaken in the course of their duties so long as that conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982) (internal quotation marks and citation omitted); Eng v. Coughlin, 858 F.2d 889, 895 (2d Cir. 1988). However, even if the constitutional privileges “are so clearly defined that a reasonable public official would know that his actions might violate those rights, qualified ... immunity might still be available ... if it was objectively reasonable for the public official to believe that his acts did not violate those rights.” Kaminsky v. Rosenblum, 929 F.2d 922, 925 (2d Cir. 1991); Magnotti v. Kuntz, 918 F.2d 364, 367 (2d Cir. 1990) (internal citations omitted). A court must first determine whether, if the plaintiff's allegations are accepted as true, there would be a constitutional violation. See Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). Only if there is a constitutional violation does a court proceed to determine whether the constitutional rights were clearly established at the time of the alleged violation. Aiken v. Nixon, 236 F.Supp.2d 211, 230 (N.D.N.Y. 2002). Here, plaintiff has not established a constitutional violation to satisfy the first prong of the qualified immunity test. See subsection II.C. supra, at 14-24. Because there is no constitutional violation, the undersigned does not reach whether plaintiff's constitutional rights were clearly established at the time of the alleged violation. See Aiken, 236 F.Supp.2d at 230. Accordingly, it is recommended that defendants' motion on this ground be granted. III. Conclusion WHEREFORE, for the reasons stated herein, it is hereby: RECOMMENDED, that defendants' Motion for Summary Judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 48) be GRANTED; and it is further RECOMMENDED, that plaintiff's second amended complaint (Dkt. No. 17) be DISMISSED in its entirety, with prejudice; and it is ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order on all parties in accordance with Local Rules. IT IS SO ORDERED. Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen 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 Servs., 892 F.2d 15 (2d Cir. 1989) ); 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 6(a), 6(e), 72. 10 All Citations Not Reported in Fed. Supp., 2018 WL 4635708 Footnotes 1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 68 of 300
Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 2 On October 2, 2017, plaintiff filed his response in opposition to plaintiff's motion for summary judgment. Dkt. No. 51. The undersigned observes that plaintiff titled his motion “Notice of Motion for Summary Judgment with L.R. 56.2 Notice.” See id. at 1. Based on the substance of the response, the undersigned does not interpret this document as a cross-motion for summary judgment, and believes that plaintiff attempted to file a response in opposition. 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. 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 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. N.D.N.Y. L.R. 7.1(a)(3). 4 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, have been provided to plaintiff. 5 In Williams v. Priatno, the Second Circuit debated Ross’s effect on Hemphill’s estoppel exception. See Williams, 829 F.3d at 123. The Williams Court stated that “Ross largely supplants Hemphill inquiry by framing the exception issue entirely within the context of whether administrative remedies were actually available to the aggrieved inmate.” Id. (citing Ross, 136 S.Ct. at 1858-59). 6 First, the inmate must file a complaint with an inmate grievance program (“IGP”) clerk within twenty-one days of the alleged incident. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5(a)(1). An IGP representative has sixteen calendar days to informally resolve the issue. Id. § 701.5(b)(1). If no informal resolution occurs, the IGRC 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, the inmate may appeal to CORC within seven days after receipt of the superintendent's determination. Id. §§ 701.5(d)(i)-(ii). 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). Parties do not dispute that at all relevant times, DOCCS had in place a three-step inmate grievance program. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5. 7 The procedural history of this case is not available on Westlaw. However, the docket view for this case, which is available on Westlaw, states that on December 11, 2001, “[t]he Court adopts Mag. Judge Ellis' Report and Recommendation, recommending that deft's motion for summary judgment be granted, in its entirety.” A copy of this portion of the docket will be provided to both parties. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 69 of 300
Campbell v. Prue, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 8 Plaintiff initially testified that he told Supt. Hallenbeck that inmate Moore threatened him and/or threatened to cut him on September 10, 2015. See Pl. Dep. at 24-27. Later on in the deposition, plaintiff clarified that he did not speak to Supt. Hallenbeck on September 10, 2015 concerning any threats by inmate Moore; instead, plaintiff told non-party Sgt. Soto to inform Supt. Hallenbeck of the incident. See Pl. Dep. at 27, 61-62. 9 C.O. Prue disputes that plaintiff informed him that inmate Moore threatened him during the lunch hour. See Dkt. No. 48-3 (“Prue Decl.”) ¶ 21. 10 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. Id. § 6(a)(1)(C). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 70 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2019 WL 498277 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Tiquan DAVIS, Plaintiff, v. Correction Officer T. GRANT and Sgt. Todd Paroline, Defendants. No. 15-CV-5359 (KMK) | Signed 02/08/2019 Attorneys and Law Firms Tiquan Davis, Ossining, NY, Pro Se Plaintiff. Yan Fu, Esq., New York State Attorney General, New York, NY, Counsel for Defendants. OPINION & ORDER KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE *1 Tiquan Davis (“Plaintiff”), proceeding pro se, brings this Action against Correction Officer T. Grant (“Grant”) and Sergeant Todd Paroline (“Paroline”) (collectively, “Defendants”), employees of the New York State Department of Correction and Community Supervision (“DOCCS”), pursuant to 42 U.S.C. § 1983, alleging retaliation arising out of allegedly false misbehavior reports filed by Defendants. (See Second Am. Compl. (“SAC”) (Dkt. No. 88).) 1 Before the Court is Defendants' Motion for Summary Judgment. (See Not. of Mot. (Dkt. No. 94).) For the reasons explained herein, Defendants' Motion for Summary Judgment is granted. I. Background A. Factual Background The Court has described the allegations and procedural history of this case in two prior published Opinions. See Davis v. Jackson, No. 15-CV-5359, 2016 WL 5720811 (S.D.N.Y. Sept. 30, 2016); Davis v. Jackson, No. 15-CV-5359, 2018 WL 358089 (S.D.N.Y. Jan. 8, 2018). The Court therefore assumes familiarity with the dispute and will provide factual and procedural background only as relevant to the instant Motion. The following facts are taken from Defendants' statements pursuant to Local Civil Rule 56.1, (Defs.' Local Rule 56.1 Statement (“Defs.' 56.1”) (Dkt. No. 95) ), and Plaintiff's “Reply to Summary Judgment” and “Declaration in Support of Reply,” both filed in the same document, (Pl.'s Reply in Opp'n to Mot. for Summ. J. (“Pl.'s Reply”) (Dkt. No. 101); Decl. of Tiquan Davis (“Pl.'s Decl.”) (Dkt. No. 101) ), and the admissible evidence submitted by the Parties. 2 The facts are recounted “in the light most favorable to” Plaintiff, the non- movant. Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (internal quotation marks omitted). 3 The facts as described below are in dispute only to the extent indicated. *2 At all times relevant to the claims in the SAC, Plaintiff was incarcerated at Sing Sing Correctional Facility (“Sing Sing”). (Defs.' 56.1 ¶ 1.) DOCCS has an inmate grievance procedure. (Id. ¶ 3.) An Inmate Grievance Program (“IGP”) procedure exists at Sing Sing. (Id. ¶ 4.) In his SAC, Plaintiff alleges that: (1) at some time in March 2014, Grant issued a false misbehavior report against him in retaliation for an incident involving Plaintiff and Correction Officer Angela Jackson; 4 (2) on October 31, 2015, Grant issued a misbehavior report against Plaintiff in retaliation for filing a lawsuit against Jackson; (3) on August 4, 2015, Paroline confiscated Plaintiff's belt buckle, falsely told Office of Mental Health (“OMH”) officials that Plaintiff was suicidal, and wrote a false misbehavior report; and (4) on August 8, 2015, Paroline wrote Plaintiff another misbehavior report after Plaintiff was found not guilty of the charges in the August 4, 2015 misbehavior report. (Id. ¶ 2; see generally SAC.) Plaintiff filed a grievance on August 13, 2015, which was assigned grievance number 55380-15 (the “55380-15 Grievance”). (Defs.' 56.1 ¶ 5.) In the grievance, Plaintiff claimed, among other things, that on August 4, 2015, Paroline confiscated his belt buckle, falsely told OMH officials that Plaintiff was suicidal, and wrote a false misbehavior report. (Id. ¶ 6.) Because Plaintiff alleged harassment by DOCCS staff, his grievance was forwarded to the Sing Sing Superintendent pursuant to 7 NYCRR § 701.8. (Id. ¶ 7.) Following an investigation, Plaintiff's grievance was denied on September 3, 2015. (Id. ¶ 8.) Sing Sing has no record of any appeal by Plaintiff of the denial of the 55380-15 Grievance Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 71 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 to the DOCCS Central Office Review Committee (“CORC”). (Id. ¶ 9.) With respect to the August 4, 2015, Paroline grievance report, Plaintiff claims that after he received his “response from the superintendent,” which the Court takes to mean the September 3, 2015 denial of the grievance, Plaintiff “wrote [his] appeal out for CORC ... and was personally able to hand [his] appeal to the grievance sgt who told [him] that they would make sure [his] appeal got filed.” (Pl.'s Decl. ¶ 4.) Plaintiff claims he has still not heard from CORC regarding his appeal. (Id.) With respect to the October 31, 2015, incident involving Grant, Plaintiff states in his Declaration that on October 31, 2015, he wrote a harassment and retaliation grievance and gave this grievance to the B-block IGRC representative to file. (Id. ¶ 2.) After three weeks Plaintiff claims he asked the same representative whether he had filed his grievance because he had not heard anything. (Id.) The representative told him he had filed the grievance and that he would check on the status with the IGP supervisor. A week later the representative told Plaintiff that the IGP had told him they would get back to him but never did. (Id.) The representative suggested to Plaintiff that he appeal it to the CORC “because the grievance was a ‘code 49’ and would be sent straight to the superintendent.” (Id.) Plaintiff alleges he then drafted his appeal “that night,” included a copy of his original grievance dated October 31, 2015, and gave it to the representative the next morning. Plaintiff claims he has still not heard anything regarding this grievance. (Id.) *3 Plaintiff filed eight other grievances while at Sing Sing between 2014 and 2017, including complaints that (1) the “staff failed to follow instructions,” (2) he “wants cooling system in the hallways,” (3) he “claims dental is not providing him treatment,” (4) he “wants decision of tier 2,” (5) involve “in-cell movie and DVD issue,” (6) he “wants to know why he was not allowed to run for ILC,” (7) involve “staff interference with AVP,” and (8) he “wants to be placed in the program.” (Decl. of Quandera Quick (“Quick Decl.”) ¶¶ 6–7, Ex. A (Plaintiff's Sing Sing Grievance Record) (Dkt. No. 96).) Besides the 55380-15 Grievance, none of the grievances filed by Plaintiff between 2014 and 2017 involved an allegedly false misbehavior report or harassment by staff. (Quick Decl. ¶ 12.) Since Plaintiff has been incarcerated under his current Department Identification Number (#95-A-0305), he has appealed 39 grievances to CORC. (Decl. of Rachael Seguin (“Seguin Decl.”) ¶ 6, Ex. A, at 3 (Plaintiff's CORC Grievance Record) (Dkt. No. 97).) 5 According to CORC records, Plaintiff did not appeal any grievances to CORC between 2012 and 2016. (Seguin Decl. ¶ 8; Plaintiff's CORC Grievance Record at 3.) Plaintiff appealed one grievance in 2016 and it involved television programming. (Plaintiff's CORC Grievance Record at 3.) In his Declaration, Plaintiff claims that he made copies of his grievances but cannot find them. (Pl.'s Decl. ¶ 6.) He states that he knows he followed the “steps of the PLRA [Prison Litigation Reform Act of 1995] to the best of [his] abilities,” because he used to be a grievance representative himself and was “fully aware that in order to exhaust [his] claims [he] had to follow thr[ough] all the way to the CORC.” (Id.) Plaintiff further states that in doing so he had to “rely on the IGRC to carry out their functions which they clearly did not do.” (Id.) 6 B. Procedural History On July 7, 2015, Plaintiff filed his Complaint, (see Compl. (Dkt. No. 2) ), and sought leave to proceed in forma pauperis, (see Dkt. No. 1), which was granted on July 15, 2015, (see Dkt. No. 4). On December 28, 2015, Defendants filed their Motion to Dismiss and accompanying papers. (See Dkt. Nos. 22–27.) After several extensions, Plaintiff filed his Opposition on June 7, 2016, (see Dkt. No. 33), and, on June 29, 2016, Defendants submitted their Reply, (see Dkt. No. 37). Plaintiff submitted a surreply on July 22, 2016, (see Dkt. No. 41), and Defendants filed their own surreply and accompanying papers on September 13, 2016, (see Dkt. Nos. 48–50). *4 On September 30, 2016, the Court issued an Opinion and Order dismissing, without prejudice, Plaintiff's official capacity claims and finding that Plaintiff's due process and retaliation claims were time-barred absent application of an applicable tolling doctrine. (See generally Opinion & Order (Sept. 30, 2016) (“Sept. 30, 2016 Opinion”) (Dkt. No. 52).) The Opinion allowed Plaintiff time to file an Amended Complaint. (Id. at 28.) On December 1, 2016, Plaintiff filed an Amended Complaint. (See Am. Compl. (Dkt. No. 65).) On June 20, 2017, Defendants filed their motion to dismiss the Amended Complaint and accompanying papers, (see Dkt. Nos. 77–80). On August 14, 2017, Plaintiff filed his Opposition papers. (See Dkt. Nos. 83–84.) Defendants filed a letter brief in Reply in lieu of a formal Memorandum of Law. (See Letter from Yan Fu, Esq., to Court (Aug. 29, 2017) (Dkt. No. 85).) Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 72 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 On January 8, 2018, the Court issued an Opinion and Order granting in part and dismissing in part Defendants' Motion to Dismiss. (See Opinion & Order (Jan. 8, 2018) (“Jan. 8, 2018 Opinion”) (Dkt. No. 86).) The Court dismissed Plaintiff's retaliation and due process claims against Defendants Jackson, Ortiz, Shibah, Donahue, George, and O'Cana with prejudice as time-barred and barred by the collateral estoppel doctrine. (Id. at 19, 24, 29.) Plaintiff's retaliation claim against Grant was also dismissed, but without prejudice. (Id. at 25– 26.) Plaintiff's retaliation claims as to Paroline survived. (Id. at 29.) On February 16, 2018, Plaintiff filed a Second Amended Complaint. (See SAC.) On February 28, 2018, the Court granted the remaining Defendants request for an extension to answer the SAC. (Dkt. No. 90.) On March 23, 2018, Defendants submitted a pre-motion letter requesting permission to file a Motion for Summary Judgment. (See Letter from Assistant Attorney General Yan Fu, Esq., to Court (Dkt. No. 91).) On April 10, 2018, the Court granted Defendants' request and set a briefing schedule. (Dkt. No. 92.) On April 10, 2018, Plaintiff submitted a letter supplementing the SAC. (See Letter from Tiquan Davis to Court (“SAC Supp.”) (Dkt. No. 93).) On May 3, 2018, Defendants filed the instant Motion for Summary Judgment, accompanying papers and exhibits, and a Rule 56.1 Statement. (Not. of Mot.; Defs.' 56.1; Quick Decl.; Seguin Decl.; Defs.' Mem. Of Law. in Supp. of Mot. for Summ. J. (“Defs.' Mem.”) (Dkt. No. 98).) That same day, on May 3, 2018, Defendants sent a Rule 56.2 notice to Plaintiff. (Dkt. No. 99.) On May 14, 2018, Plaintiff filed his Opposition to the Motion and a Declaration in support of his Opposition. (Pl.'s. Mem.; Pl.'s Decl.) Plaintiff did not file a response to Defendants' Rule 56.1 Statement. On June 29, 2019, Defendants filed a reply. (Defs.' Reply Mem. of Law in Further Supp. of Mot. for Summ. J. (“Defs.' Reply”) (Dkt. No. 103).) II. Discussion A. Standard of Review Summary judgment is appropriate where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123–24 (2d Cir. 2014) (same). “In determining whether summary judgment is appropriate,” a court must “construe the facts in the light most favorable to the non-moving party and ... resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F. Supp. 3d 294, 314 (S.D.N.Y. 2014) (same). “It is the movant's burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Berry v. Marchinkowski, 137 F. Supp. 3d 495, 521 (S.D.N.Y. 2015) (same). *5 “However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim,” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration and quotation marks omitted). Further, “[t]o survive a [summary judgment] motion ..., [a nonmovant] need[s] to create more than a ‘metaphysical’ possibility that his allegations were correct; he need[s] to ‘come forward with specific facts showing that there is a genuine issue for trial,’ ” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) ), “and cannot rely on the mere allegations or denials contained in the pleadings,” Guardian Life Ins. Co. v. Gilmore, 45 F. Supp. 3d 310, 322 (S.D.N.Y. 2014) (quotation marks omitted); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (“When a motion for summary judgment is properly supported by documents or other evidentiary materials, the party opposing summary judgment may not merely rest on the allegations or denials of his pleading....”). And, “[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). “On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (quotation marks omitted). At this stage, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 73 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 factual issues to be tried.” Brod, 653 F.3d at 164 (quotation marks omitted). Thus, a court's goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323–24 (1986) ). However, a district court should consider only evidence that would be admissible at trial. See Nora Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 746 (2d Cir. 1998). “[W]here a party relies on affidavits ... to establish facts, the statements ‘must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated.’ ” DiStiso, 691 F.3d at 230 (quoting Fed. R. Civ. P. 56(c)(4) ). Finally, the Second Circuit has instructed that when a court considers a motion for summary judgment, “special solicitude” should be afforded a pro se litigant, see Graham, 848 F.2d at 344; accord Mercado v. Div. of N.Y. State Police, No. 96-CV-235, 2001 WL 563741, at *7 (S.D.N.Y. May 24, 2001) (same), and a court should construe “the submissions of a pro se litigant ... liberally” and interpret them “to raise the strongest arguments that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (italics and quotation marks omitted). And, “the failure to oppose a motion for summary judgment alone does not justify the granting of summary judgment.” Vt. Teddy Bear Co., 373 F.3d at 244; see also Jackson v. Fed. Exp., 766 F.3d 189, 196 (2d Cir. 2014) (explaining that “an examination of the legal validity of an entry of summary judgment should ... be[ ] made in light of the opposing party's pro se status” (italics omitted) ). “Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence ... are insufficient to overcome a motion for summary judgment.” Houston v. Teamsters Local 210, Affiliated Health & Ins. Fund-Vacation Fringe Ben. Fund, 27 F. Supp. 3d 346, 351 (E.D.N.Y. 2014) (alterations, italics, and quotation marks omitted); see also Flores v. City of New York, No. 15-CV-2903, 2017 WL 3263147, at *2 (S.D.N.Y. July 31, 2017) (same). B. Analysis *6 Defendants argue that the Court should grant summary judgment in their favor because Plaintiff failed to exhaust his available administrative remedies as required by the PLRA. (Defs.' Mem. 1, 4–7.) Plaintiff counters that he “followed all the requirements needed to satisf[y] the exhaustion prongs of the PLRA” and that “[t]he fact that there is no record on file is not due to the [P]laintiff not filing his grievance or appeals, and [that] he should not be faulted because of such.” (Pl.'s Mem. 1–2.) 1. Applicable Law The PLRA provides that “[n]o 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 available are exhausted.” 42 U.S.C. § 1997e(a). This “language is ‘mandatory’: An inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 136 S. Ct. 1850, 1856 (2016) (citation and some quotation marks omitted). The exhaustion requirement applies to “all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 520, 532 (2002), and includes actions for monetary damages even if monetary damages are not available as an administrative remedy, see Booth v. Churner, 532 U.S. 731, 741 (2001). Moreover, the PLRA “requires proper exhaustion, which means using all steps that the prison grievance system holds out.” Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (citations, alterations, and quotation marks omitted). Indeed, the PLRA demands “strict compliance with the grievance procedure ..., or else dismissal must follow inexorably.” McCoy v. Goord, 255 F. Supp. 2d 233, 246 (S.D.N.Y. 2003) (citations, alteration, and quotation marks omitted). Exhaustion must occur prior to Plaintiff's filing suit; “[s]ubsequent exhaustion after suit is filed therefore is insufficient.” Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001). The PLRA contains a “textual exception to mandatory exhaustion.” Ross, 136 S. Ct. at 1858. “[T]he exhaustion requirement hinges on the ‘availab[ility]’ of administrative remedies: An inmate ... must exhaust available remedies, but need not exhaust unavailable ones.” Id. Available “grievance procedures ... are capable of use to obtain some relief for the action complained of.” Id. at 1859 (citation and quotation marks omitted). In Ross, the Supreme Court identified “three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Id. An administrative remedy is unavailable: (1) where “it operates as a simple dead end —with officers unable or consistently unwilling to provide any relief to aggrieved inmates,” id. (citation omitted); (2) where the procedure is “so opaque that it becomes, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 74 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 practically speaking, incapable of use” such that “no ordinary prisoner can discern or navigate it,” id.; or (3) where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation,” id. at 1859–60. It bears noting, however, that the “three circumstances discussed in Ross do not appear to be exhaustive,” Williams, 829 F.3d at 123 n.2 (declining to opine on “what other circumstances might render an otherwise available administrative remedy actually incapable of use”), but rather “guide the Court's inquiry,” Khudan v. Lee, No. 12- CV-8147, 2016 WL 4735364, at *5 (S.D.N.Y. Sept. 8, 2016) (citation omitted). *7 “[I]t is well settled that conclusory allegations of intimidation are not sufficient to create a genuine disputed issue of fact regarding the availability of administrative remedies.” Khudan, 2016 WL 4735364, at *6 (citations, quotation marks, and alterations omitted); see also Heyliger v. Gebler, No. 06-CV-6220, 2014 WL 4923140, at *3 (W.D.N.Y. Sept. 30, 2014) (granting summary judgment, notwithstanding the plaintiff's testimony that his “original grievance was discarded by prison officials,” where he “never described or named the individual who allegedly took this action”), aff'd, 624 F. App'x 780 (2d Cir. 2015); Litchmore v. Williams, No. 11-CV-7546, 2013 WL 3975956, at *6 (S.D.N.Y. Aug. 5, 2013) (granting summary judgment where there was “no evidence” that the “plaintiff's appeal was actually mailed, intercepted, or ignored” and no “evidence of any particular officer's misconduct”); Rosado v. Fessetto, No. 09-CV-67, 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010) (“Courts have consistently held ... that an inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.”), report and recommendation adopted, 2010 WL 3809991 (N.D.N.Y. Sept. 21, 2010); Veloz v. New York, 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004) (granting summary judgment where, “[e]ven assuming the [plaintiff] did submit the grievances,” he “offer[ed] no evidence that any particular officer thwarted his attempts to file,” and instead, “simply contend[ed] that the practice of destroying or misplacing grievances must have been the cause of his grievances being lost”), aff'd, 178 F. App'x 39 (2d Cir. 2006). Finally, failure to exhaust is an affirmative defense, not a pleading requirement. Jones v. Bock, 549 U.S. 199, 216 (2007); Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013). As such, Defendants bear the burden of proving failure to exhaust. See McCoy, 255 F. Supp. 2d at 248. 2. Application The grievance program applicable here is the DOCCS IGP, which provides for a three-step grievance process. See Colon v. Annucci, No. 17-CV-4445, 2018 WL 4757972, at *17 (S.D.N.Y. Sept. 28, 2018); Terry v. Hulse, No. 16-CV-252, 2018 WL 4682784, at *6 (S.D.N.Y. Sept. 28, 2018). To initiate the process, an inmate must file a written complaint with the [IGRC], a facility committee composed of inmates and appointed staff members. See N.Y.C.R.R. § 701.4–5. ... Second, the inmate can appeal an unfavorable IGRC determination to the superintendent of the facility. See [ ] N.Y.C.R.R. § 701.5(c)[ ]. Finally, an inmate can appeal an unfavorable superintendent's determination to [ ]CORC[ ]. See [ ] N.Y.C.R.R. § 701.5(d) [ ]; Directive No. 4040. Amador v. Andrews, 655 F.3d 89, 97 (2d Cir. 2011) (alterations and quotation marks omitted); see also Khudan, 2016 WL 4735364, at *1 (describing three-step IGP procedure). Grievances alleging misconduct by staff are subject to an expedited administrative review—they are immediately referred to the superintendent of the facility and must also be exhausted through a final appeal to CORC. Amador, 655 F.3d at 97 (citing 7 N.Y.C.R.R. § 701.8.). Only after completing all three steps of the IGP may an inmate initiate suit, see Ross, 136 S. Ct. at 1856; Williams, 829 F.3d at 122, “provided no exception to exhaustion applies,” White v. Westchester County, No. 18-CV-730, 2018 WL 6726555, at *6 (S.D.N.Y. Dec. 21, 2018). a. The March 2014 and the August 8, 2015 Incidents Plaintiff's SAC summarily states that “Plaintiff has exhausted all the herein claims at Sing Sing and Southport Correctional Facilities.” (SAC at 1.) Plaintiff has submitted no evidence, other than his own unsworn Declaration, that relates to his filing of grievances or his appeal of unfavorable determinations. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 75 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Plaintiff only filed one grievance related to the misconduct alleged in this case, namely the 55380-15 Grievance, which related to the August 4, 2015 Paroline incident. Records show that while Plaintiff filed other grievances while at Sing Sing between 2014 and 2017, none involved the misconduct alleged in this case. (Quick Decl. ¶¶ 6–7, 12; Plaintiff's Sing Sing Grievance Record.) Neither Plaintiff's Declaration, nor any of his other submissions, mentions filing a grievance for the March 2014 Grant incident or the August 8, 2015 Paroline incident. Moreover, records show that Plaintiff did not appeal the 55380-15 Grievance. Plaintiff's only appeal between 2012 and 2016 involved television programming. (Plaintiff's CORC Grievance Record at 3.) Plaintiff offers no evidence whatsoever with respect to the March 2014 Grant incident or the August 8, 2015 Paroline incident, and has thus failed to “come forward with admissible evidence sufficient to raise a genuine issue of fact.” CILP Assocs., L.P., 735 F.3d at 123. Accordingly, Defendants have “adequately supported the affirmative defense of failure to exhaust.” See, e.g., Bennett v. Onua, No. 09-CV-7227, 2010 WL 2159199, at *3 (S.D.N.Y. May 26, 2010) (finding that defendants discharged their initial burden on summary judgment by producing affidavits that a search of prison records indicated that no grievances were ever filed); see also Deebs v. Alstom Transp., Inc., 346 F. App'x 654, 656–57 (2d Cir. 2009) (affirming grant of summary judgment where the “plaintiffs rel[ied] almost exclusively upon” their “speculative” and “vague” testimony in the face of the defendants' documentary evidence); Toro v. City of New York, No. 12-CV-4093, 2015 WL 1014044, at *5 (E.D.N.Y. Mar. 6, 2015) (granting summary judgment where “there is no evidence—beyond the allegations in his complaint and his own unsupported deposition testimony— that the [plaintiff] actually reported such misconduct to the authorities”). *8 Nor does any exception to exhaustion apply. Plaintiff makes no showing whatsoever that the IGP is “unable” to provide relief to grievances, or that prison officials are “consistently unwilling” to provide relief, or that he has been “thwart[ed] ... from taking advantage” of the IGP “through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1859–60. Nor can Plaintiff show that the IGP is “so opaque that it [is] ... incapable of use,” id. at 1859, given that Plaintiff successfully used the IGP, filing eight grievances while at Sing Sing between 2014 and 2017, (Defs.' 56.1 ¶ 10), appealing 39 grievances to CORC since he has been in prison, (Seguin Decl. ¶ 6, Plaintiff's CORC Grievance Record at 3), and having served as a grievance representative himself, (Pl.'s Decl. ¶ 6). See, e.g., Mckinney v. Prack, 170 F. Supp. 3d 510, 516–17 (W.D.N.Y. 2016) (finding that the plaintiff failed to present a question of fact as to whether the grievance process was available to him where the record showed the plaintiff appealed and exhausted 20 grievances during his 29 years of incarceration including four during the relevant period); Taylor v. Thames, No. 09-CV-72, 2010 WL 3614189, at *4 (N.D.N.Y. July 22, 2010) (finding that the plaintiff failed to present a question of fact as to whether the grievance process was available to him where the record showed he “utilized the administrative procedure over twenty times in the twenty-eight months [he] was incarcerated”). Moreover, here, Plaintiff makes no allegations in his SAC or his Declaration that anyone or anything prevented him from filing grievances related to these two incidents. The Court concludes that Plaintiff failed to complete any of the steps of the IGP with respect to the March 2014 Grant incident or the August 8, 2015 Paroline incident, and that no exception to the exhaustion requirement applies. b. The August 4, 2015 and October 31, 2015 Incidents Defendants admit that Plaintiff filed a grievance on August 13, 2015, namely the 55380-15 Grievance, (Defs.' 56.1 ¶ 5), that related to the August 4, 2015 Paroline incident. (Id. ¶ 6.) Plaintiff's grievance was ultimately denied on September 3, 2015. (Id. ¶ 8.) Defendants presented admissible evidence that Sing Sing has no record of any appeal by Plaintiff of the denial of grievance 55380-15 to CORC. (Seguin Decl. ¶ 6, Plaintiff's CORC Grievance Record at 3.) In the section of Plaintiff's Declaration where he addresses Paroline, Plaintiff claims that after he received his “response from the superintendent,” which the Court takes to mean the September 3, 2014 denial of the grievance, he “wrote [his] appeal out for CORC ... and was personally able to hand [his] appeal to the grievance sgt who told [him] that they would make sure [his] appeal got filed.” (Pl.'s Decl. ¶ 4.) Plaintiff claims he has still not heard from CORC regarding his appeal. (Id.) Defendants deny that Plaintiff ever filed a grievance related to the October 31, 2015 Grant incident. Defendants submitted evidence outlining what grievances Plaintiff filed between 2014 and 2017, and the October 31, 2015 Grant incident was not among them. (Defs.' 56.1 ¶¶ 10–11; Sing Sing Grievance Record.) Plaintiff counters in his Declaration that on October 31, 2015, he wrote a harassment and retaliation grievance and gave this grievance to the B-block IGRC representative to Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 76 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 file. (Pl.'s Decl. ¶ 2.) Plaintiff then followed up repeatedly with the representative who told him he would check with the IGP supervisor and who assured Plaintiff the IGP would get back to him. (Id.) Plaintiff claims that the representative then suggested to Plaintiff that he appeal it to the CORC, and that Plaintiff drafted his appeal “that night,” included a copy of his original grievance dated October 31, 2015, and gave it to the representative the next morning. Plaintiff claims he has still not heard anything regarding this grievance. (Id.) In this case, Defendants have met their initial burden of demonstrating that Plaintiff failed to exhaust his retaliation claims. Defendants submitted admissible evidence showing that there is no record of Plaintiff filing a grievance regarding the October 31, 2015 incident, and no record of Plaintiff filing an appeal regarding the August 4, 2015 incident. (See generally Plaintiff's Sing Sing Grievance Record; Plaintiff's CORC Grievance Record.) Plaintiff maintains that, notwithstanding the lack of any record, he did file a grievance regarding Grant's October 31, 2015 retaliation, (Pl.'s Decl. ¶ 2), and that he did appeal the denial of his grievance regarding Paroline's August 4, 2015 retaliation, (id. ¶ 4). *9 The Court takes Plaintiff's assertions that his grievances and appeals were lost or not properly processed as an argument that the grievance process was unavailable to him, either because the process “operates as a simple dead end,” was “practically speaking, incapable of use,” or because “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1858– 60. “Plaintiff's unsupported assertion that he filed a grievance but that it was somehow lost or destroyed is insufficient to establish a genuine issue of material fact.” Engles v. Jones, No. 13-CV-6461, 2018 WL 6832085, at *10 (W.D.N.Y. Dec. 28, 2018) (granting summary judgment to defendants for failure to exhaust where defendants demonstrated through admissible evidence that there was no record of the plaintiff filing his grievance and where the plaintiff merely alleged without any documentary support that his grievance was lost or destroyed); see also Scott v. Kastner-Smith, 298 F. Supp. 3d 545, 555 (W.D.N.Y. 2018) (“[C]ourts have consistently held ... that an inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.”); Mims v. Yehl, No. 13-CV-6405, 2014 WL 4715883, at *4 (W.D.N.Y. Sept. 22, 2014) (holding that inmate's “unsupported statement” that he has submitted a grievance is “insufficient at the summary judgment stage”); Khudan, 2016 WL 4735364, at *5 (granting summary judgment to defendants where the plaintiff asserted he filed his grievance with the IGRC, received no response, and then sent an appeal to “Albany,” because the “[p]laintiff's self- serving and incomplete testimony ... is insufficient to create a genuine dispute of fact, particularly in light of [d]efendants' evidence that no grievance was ever sent” (quotation marks and alterations omitted) ); Rosado, 2010 WL 3808813, at *7 (granting summary judgment to defendants where the plaintiff alleged that he filed a grievance, did not receive an answer, thereafter sent two letters to the superintendent, because the plaintiff's claim that officials must have “messed with” his grievance and his letters was insufficient to excuse the exhaustion requirement and the plaintiff could have further appealed the grievance to CORC); Veloz, 339 F. Supp. 2d at 515–16 (granting summary judgment to defendants because the plaintiff failed to exhaust available administrative remedies where the plaintiff alleged that his grievances were misplaced or destroyed by corrections officers but there was no evidence that any grievance was filed and the plaintiff failed to offer “evidence that any particular officer thwarted his attempts to file”). It is true that courts in the Second Circuit have excused failure to exhaust where a plaintiff identified an officer or officers who took some specified action to prevent the plaintiff from filing a grievance, see Lopez v. Bushey, No. 11-CV-0418, 2013 WL 1294477, at *6 (S.D.N.Y. Mar. 4, 2013) (denying summary judgment because pro se plaintiff raised a triable issue of fact that special circumstances justified his failure to exhaust his administrative remedies where he named a specific officer and alleged that officer repeatedly tore up his grievances before he could file them); Gill v. Frawley, No. 02-CV-1380, 2006 WL 1742738, at *8–9 (N.D.N.Y. June 22, 2006) (denying summary where plaintiff named three officers to whom he submitted his grievances and attached copies of correspondences with those officers in which they assured him his grievances had been submitted, and where defendants failed to submit admissible evidence that plaintiff had not filed the grievances at issue), or threatened the plaintiff for attempting to file a grievance, see Hubbs v. Suffolk County Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (holding that “administrative remedies may ... be deemed unavailable if the plaintiff can demonstrate ... threats from correction officers—rendered a nominally available procedure unavailable”); Grafton v. Hesse, No. 15-CV-4790, 2017 WL 9487092, at *7 (E.D.N.Y. Aug. 25, 2017) (finding that “specific threats of retaliation Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 77 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 or intimidation by prison officials may render administrative remedies unavailable”). Here, however, Plaintiff offers no evidence that any particular officer thwarted his attempts to file his grievance or appeal. Plaintiff also does not allege that anyone threatened him. Instead, Plaintiff claims that he filed his October 31, 2015 grievance and appeal with the “B-block IGRC representative,” (Pl.'s Decl. ¶ 2), and that he handed his August 4, 2015 appeal directly to the “grievance sgt,” (id. ¶ 4). Putting aside that Plaintiff does not provide enough information about these officers to clearly identify them, he does not allege they destroyed his papers or attempted to keep him from filing them. (Id. ¶¶ 2, 4.) Plaintiff does not even expressly allege that his submissions were lost—he summarily states that it is not his fault that there is no record of his papers having been filed. (Pl.'s Mem. 1–2.) *10 Courts in the Second Circuit have also held that administrative remedies are unavailable in extraordinary circumstances where, for example, an inmate must rely on prison officials to submit his grievance. See Williams, 829 F.3d at 122 (reversing dismissal of case where plaintiff was in a special housing unit segregated from the regular prison population, gave his grievance to a correction officer to file, and that officer failed to file it, because the applicable grievance regulations “gave no guidance whatsoever” to a prisoner in plaintiff's position); Rodriguez v. Cross, No. 15- CV-1079, 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (noting that “[c]ourts have denied a defendant's motion for summary judgment when faced with an unanswered and unfiled grievance drafted in SHU”); Mena v. City of New York, No. 13-CV-2430, 2016 WL 3948100, at *5 (S.D.N.Y. July 19, 2016) (finding that Williams, 829 F.3d 118, “hinged on the ‘extraordinary circumstances’ specific to the case before it”). Here, Plaintiff was not segregated from the regular prison population and does not allege or submit any evidence that he did not have access to the grievance process—he in fact admits repeatedly speaking to the grievance representative and handing his appeal to the grievance sergeant directly. (Pl.'s Decl. ¶¶ 2, 4.) Instead, Plaintiff's bare assertions that he submitted his grievances but never received a response fall squarely into the category of assertions that courts in the Second Circuit have found do not excuse the exhaustion requirement. “Plaintiff's unsupported assertion that he filed a grievance but that it was somehow lost or destroyed is insufficient to establish a genuine issue of material fact.” Engles, 2018 WL 6832085, at *10; see also Scott, 298 F. Supp. 3d at 555 (holding that “an inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement”); Shaw v. Ortiz, No. 15-CV-8964, 2016 WL 7410722, at *6 (S.D.N.Y. Dec. 21, 2016) (finding that the IGP does contemplate the circumstance where a plaintiff merely alleges that he filed his grievance but never received a response because “the failure to render a timely decision at a lower level” is appealable “to the next level,” and that this scenario is distinguishable from Williams, 829 F.3d 118, where the IGP did not contemplate the circumstances of a plaintiff in SHU). Considering Plaintiff's statements, which “stand alone and unsupported,” Veloz, 339 F. Supp. 2d at 516, along with the evidence Defendants have submitted showing there is no record of Plaintiff filing an appeal regarding the August 4, 2015 incident, or filing a grievance or appeal regarding the October 31, 2015 incident, (Defs.' 56.1 ¶¶ 9–12; Plaintiff's Sing Sing Grievance Record; Plaintiff's CORC Grievance Record), and evidence that Plaintiff has successfully used the IGP on 39 previous occasions, (id. ¶¶ 10, 13; Pl.'s Decl. ¶ 6), the Court concludes that no exception to the exhaustion requirement applies. Because Plaintiff has failed to exhaust his available administrative remedies as to the remaining four instances of retaliation he alleges in his SAC, the Court grants summary judgment to Defendants on all remaining claims. Khudan, 2016 WL 4735364, at *5 (granting summary judgment to defendants because “[p]laintiff's self-serving and incomplete testimony ... is insufficient to create a genuine dispute of fact, particularly in light of [d]efendants' evidence that no grievance was ever sent”). III. Conclusion For the foregoing reasons, Defendants' Motion for Summary Judgment is granted. The Clerk of the Court is respectfully directed to terminate the pending Motion, (Dkt. No. 94), enter judgment for Defendants, close this case, and mail a copy of this Opinion and Order to Plaintiff. SO ORDERED. All Citations Not Reported in Fed. Supp., 2019 WL 498277 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 78 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 Footnotes 1 Plaintiff's retaliation claims against Defendants Grant and Paroline are the only remaining claims in this case. The Court dismissed all other Defendants and claims in a September 30, 2016 Opinion and Order, (see Opinion & Order (Sept. 30, 2016) (“Sept. 30, 2016 Opinion”) (Dkt. No. 52) ), and a January 8, 2018 Opinion and Order (see Opinion & Order (Jan. 8, 2018) (“Jan. 8, 2018 Opinion”) (Dkt. No. 86).) 2 Plaintiff submitted a Declaration in which he stated that he made his Declaration “pursuant to 28 U.S.C. § 1746.” (Pl.'s Decl. 1.) The Court notes that Plaintiff's Declaration is nearly identical to a supplement to the SAC Plaintiff filed on April 10, 2018. (See Letter from Tiquan Davis to Court (“SAC Supp.”) (Dkt. No. 93).) That Supplement, like the Declaration, fails to include the “under penalty of perjury” language. The Second Circuit has held that the absence of the “under the penalty of perjury” language constitutes a substantial departure from § 1746. See In re World Trade Ctr. Disaster Site Litig., 722 F.3d 483, 488 (2d Cir. 2013) (holding that failure to include the phrase “under penalty of perjury” in a declaration constituted a substantial departure from § 1746 such that the district court did not err in invalidating a declaration that lacked such language); LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61, 65–66 (2d Cir. 1999) (reversing summary judgment granted to plaintiff where district court excluded defendant's unsworn letter that “substantially” complied with the requirements of § 1746, because it included the language “[u]nder penalty of perjury, I make the statements contained herein,” and was signed and dated, even though it did not include language that the contents of the letter were “true and correct”); Stair v. Calhoun, No. 12-CV-6121, 2015 WL 1966345, at *1 (E.D.N.Y. May 1, 2015) (finding that pro se plaintiff's unsworn declaration that did not include the language “true under penalty of perjury” did not meet the requirements of § 1746 because “[i]nclusion of the language ‘under penalty of perjury’ is an integral requirement of the statute” (citations, quotation marks, and alterations omitted) ); Ed-George v. Burns, 09-CV-0869, 2009 WL 2957796, at *2 (N.D.N.Y. 2009) (finding that although § 1746 “requires only that a declaration [ ] ‘substantially’ ” conform with its requirements, the words “under penalty of perjury” are “expressly required” because without them “it is far from clear to the court that [the] [p]laintiff fully appreciates the consequences, or is impressed with the solemnity of his declaration” (citations, quotation marks, and alterations omitted) ). Plaintiff's Declaration does not include the language “under penalty of perjury” nor does it state that the contents are “true and correct.” It therefore lacks precisely the “integral requirement of the statute” that is meant to impress upon every declarant “the specific punishment to which he or she is subjected for certifying to false statements.” In re World Trade Ctr. Disaster Site Litig., 722 F.3d at 488. The Court could therefore decide this Motion without considering Plaintiff's Declaration. However, because Plaintiff fails to raise a triable issue of fact even if his Declaration is considered, the Court will consider Plaintiff's Declaration, especially in light of the “special solicitude” afforded to pro se litigants. Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). 3 Local Civil Rule 56.1(a) requires the moving party to submit a “short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried.” The nonmoving party must then submit “a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short[,] and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.” Local Civ. R. 56.1(b). “If the opposing party ... fails to controvert a fact set forth in the movant's Rule 56.1 statement, that fact will be deemed admitted pursuant to the local rule.” Baity v. Kralik, 51 F. Supp. 3d 414, 418 (S.D.N.Y. 2014) (quotation marks omitted); see also T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (same). “A pro se litigant is not excused from this rule,” Brandever v. Port Imperial Ferry Corp., No. 13-CV-2813, 2014 WL 1053774, at *3 (S.D.N.Y. Mar. 13, 2014) (italics omitted). Here, Defendants filed and served their 56.1 Statement, (Defs.' 56.1), in addition to a statement notifying Plaintiff of the potential consequences of not responding to the Motion, as required by Local Rule Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 79 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 56.2, (Dkt. No. 99). Despite this notice, Plaintiff failed to submit a response to Defendant's 56.1 Statement of Facts. Accordingly, the Court may conclude that the facts in Defendant's 56.1 Statement are uncontested and admissible. See Brandever, 2014 WL 1053774, at *3 (concluding that because the pro se plaintiff did not submit a Rule 56.1 statement in response to the defendant's statement of facts, “there [were] no material issues of fact”); Anand v. N.Y. State Div. of Hous. & Cmty. Renewal, No. 11-CV-9616, 2013 WL 4757837, at *7 (S.D.N.Y. Aug. 29, 2013) (same). Nevertheless, in light of the “special solicitude” afforded to pro se litigants “when confronted with motions for summary judgment,” Graham, 848 F.2d at 344, the Court will “in its discretion opt to conduct an assiduous review of the record,” when deciding the instant Motion, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (quotation marks omitted); see also Houston v. Teamsters Local 210, Affiliated Health & Ins. Fund- Vacation Fringe Ben. Fund, 27 F. Supp. 3d 346, 349 (E.D.N.Y. 2014) (“Although [the] plaintiffs did not file a Rule 56.1 statement, the Court has independently reviewed the record to ensure that there is uncontroverted evidence to support the paragraphs referenced in [the] defendants' Rule 56.1.”); Pagan v. Corr. Med. Servs., No. 11-CV-1357, 2013 WL 5425587, at *2 (S.D.N.Y. Sept. 27, 2013) (explaining that “[t]he [c]ourt ha[d] considered the [motions for summary judgment] in light of the entirety of the record to afford [the pro se] [p]laintiff the special solicitude to which he [was] entitled” where the plaintiff failed to submit a Rule 56.1 response); Cherry v. Byram Hills Cent. Sch. Dist., No. 11-CV-3872, 2013 WL 2922483, at *1 (S.D.N.Y. June 14, 2013) (“[W]here a pro se plaintiff fails to submit a proper ...Rule 56.1 statement in opposition to a summary judgment motion, the [c]ourt retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions.” (italics and quotation marks omitted) ). The Court also will consider Plaintiffs' opposition papers. 4 Defendant Jackson was dismissed from this Action with prejudice by the Jan. 8, 2018 Opinion. 5 For non-paginated exhibits, the Court cites to the ECF-generated page numbers at the top right corner of the relevant page. 6 In his Declaration, Plaintiff also makes several general statements about Sing Sing's grievance-filing process. “Between 2014 until the present there have been numerous complaints made by the ILC to the administration about the IGRC's failure to hold timely hearing, lose and not file appeals, especially those made against corrections staff. These complaints caused the director of CORC to physically come to [Sing Sing] to investigate.” (Pl.'s Decl. ¶ 5.) However, “where a party relies on affidavits ... to establish facts, the statements ‘must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant ... is competent to testify on the matters stated.’ ” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)(4) ). Plaintiff does not point to any admissible evidence documenting any complaints that other inmates allegedly made about the grievance-filing process, nor does he explain the basis of his personal knowledge of the CORC director's alleged visit to Sing Sing. Plaintiff does not explain how he knows or what he knows about these alleged complaints made by the ILC. Defendants, on the other hand, have submitted evidence to show that an IGP exists at Sing Sing, (Defs.' 56.1 ¶ 4), and that Plaintiff had successfully used the IGP, given that he filed eight other grievances while at Sing Sing between 2014 and 2017, (id. ¶ 10), and appealed 39 grievances to CORC, (id. ¶ 13). Thus, although the Court considers portions of Plaintiff's Declaration that are based on personal knowledge and set out facts that would be admissible as evidence, DiStiso, 691 F.3d at 230, the Court will not consider these statements by Plaintiff about the general flaws in Sing Sing's grievance process and the issues other inmates allegedly had with filing grievances, of which Plaintiff has no personal knowledge. See Baity, 51 F. Supp. 3d at 419–20 (disregarding plaintiff's affidavit that “contain[ed] a surfeit of improper averments, including statements not based on [the] [p]laintiff's personal knowledge and conclusory statements that are nothing more than speculation”). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 80 of 300
Davis v. Grant, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 81 of 300
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Distinguished by Neural Magic, Inc. v. Meta Platforms, Inc., D.Mass., March 6, 2023 2004 WL 3691343 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Michael DEVITO, Plaintiff, v. SMITHKLINE BEECHAM CORPORATION d/b/a Glaxosmithkline, Defendant. No. Civ.A. 02–CV–0745NPM. | Nov. 29, 2004. Attorneys and Law Firms De Lorenzo Law Firm, LLP, Schenectady, New York, for Plaintiff, Scott Lieberman, of counsel. Phillips Lytle, LLP, Buffalo, New York, for Defendant, Paul B. Zuydhoek, of counsel. King & Spalding, LLP, Atlanta, Georgia, for Defendant, Chilton D. Varner, of counsel. MEMORANDUM–DECISION AND ORDER MCCURN, Senior J. I. Preclusion Motion........................................................................................................ 4 A. Standard for Admissibility of Expert Evidence........................................................... 6 1. Deborah L. Sweeney.................................................................................................. 9 a. Qualified?.................................................................................................................... 9 2. Kevin W. George, M.D............................................................................................... 10 3. James T. O'Donnell.................................................................................................... 13 a. General Causation...................................................................................................... 14 i. Qualified?..................................................................................................................... 14 ii. Reliability of Testimony?............................................................................................. 17 b. Specific Causation...................................................................................................... 19 c. Warnings..................................................................................................................... 19 i. Qualified?..................................................................................................................... 20 ii. Reliability of Testimony?............................................................................................. 22 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 82 of 300
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 II. Summary Judgment Motion........................................................................................ 24 Introduction *1 “Between 1987 and 1997, the percentage of Americans being treated for depression more than tripled nationwide[.]” Shankar Vedantam, Report Shows Big Rise in Treatment for Depression, WASH. POST, Jan. 9, 2002, at A01. In December 1996, plaintiff Michael DeVito became one of those Americans. At that time, his primary care physician prescribed Paxil, a selective serotonin reuptake inhibitor (“SSRI”). Mr. DeVito takes Paxil to this day, despite attempts through the years to discontinue. DeVito claims that he cannot discontinue taking Paxil because he has become “dependent” upon it. Affidavit of Robert E. Glanville (Oct. 20, 2003), exh. A thereto (Complaint) at 2, ¶ 9. More specifically, plaintiff alleges that he has been unable to stop taking Paxil due to what he characterizes as “withdrawal reactions” or “dependency/withdrawal syndrome,” which according to plaintiff “includ[es], but [is] not limited to, dizziness, nausea, shaking, electrical-like shocks and horrible dreams.” Id. at 2, ¶¶ 7 and 6. In this lawsuit plaintiff alleges five causes of action against the manufacturer of Paxil, defendant Smithkline Beecham Corporation d/b/a Glaxo Smithkline (“Glaxo”): (1) fraud; (2) negligence; (3) strict liability; (4) breach of express warranty; and (5) breach of implied warranty. There is a great deal of overlap among these five causes of action. The thrust of plaintiff's complaint is that Glaxo failed to adequately warn of “Paxil's addictive qualities and dependency/withdrawal characteristics[.]” Id. at 6, ¶ 19; see also id. at 3, ¶ 11b); at 7, ¶ 25; and at 8, ¶ 33. 1 Discovery is complete and Glaxo is now moving for summary judgment pursuant to Fed.R.Civ.P. 56. Pursuant to Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S .Ct. 2786 (1993), Glaxo is also moving to preclude the testimony of the three witnesses whom plaintiff is proffering as experts. The court will address Glaxo's motion to preclude first because if any or all of the proffered testimony is inadmissible, then that could significantly impact Glaxo's summary judgment motion in terms of the admissible proof before the court. See Toole v. Toshin Co. Ltd ., No. 00–CV–821S, 2004 WL 2202580, at *4 (W.D.N.Y. Sept. 29, 2004) (granting defense motion to preclude testimony of plaintiff's expert and declining to consider his report on summary judgment motion). I. Preclusion Motion Each of the five causes of action which plaintiff alleges requires him to prove causation. “Under settled New York law, whether the action is pleaded in strict products liability, breach of warranty or negligence, the plaintiff in a products liability case bears the burden of establishing that a defect in the product as a substantial factor in causing the injury.” Prohaska v. Sofamor, S.N.C., 138 F.Supp.2d 422, 434 (W.D.N.Y.2001) (internal quotation marks and citation omitted). Common law fraud likewise “requires a showing of proximate causation, such that the injury is the natural and probable consequence of the defrauder's misrepresentation or ... the defrauder ought reasonably to have foreseen that the injury was a probable consequence of his fraud.” Cyber Media Group, Inc. v. Island Mortgage Network, Inc., 183 F.Supp.2d 559, 580 (E.D.N.Y.2002) (internal quotation marks and citation omitted). To establish causation here, plaintiff DeVito “must offer admissible testimony regarding both general causation,” i.e. that Paxil can cause the type of symptoms of which plaintiff complains when attempting to discontinue that drug, “and specific causation,” i.e. that Paxil actually caused DeVito's alleged symptoms upon discontinuation of Paxil. See Amorgianos v. National Railroad Passenger Corporation, 303 F.3d 256, 268 (2d Cir.2002) (citation omitted) (emphasis added); see also Blanchard v. Eli Lilly & Co., 207 F.Supp.2d 308, 314 (D . Vt.2002) (citations omitted) (“Plaintiffs ... must prove both general and specific causation in order to prevail on their claim, that is, that Prozac is capable of causing and in fact did cause the deaths in this case.”). In the context of Paxil litigation, “the general causation question is limited to whether discontinuation from Paxil is capable of causing dizziness, agitation, anxiety, nausea, etc.” In re Paxil Litigation, 218 F.R.D. 242, 249 (C.D.Cal.2003). Specific causation, on the other hand, focuses on whether a plaintiff can “prove that [his] symptoms came from Paxil, as opposed to, for example, the relapse of the underlying illness or the consumption or discontinuation of other drugs.” Id. *2 To establish causation, plaintiff DeVito seeks to offer the testimony of three “expert” witnesses: (1) Mr. John T. O'Donnell, a pharmacist with a Master's Degree in nutrition; (2) Dr. Kevin W. George, a former psychiatrist of plaintiff's; and (3) Ms. Deborah Sweeney, plaintiff's treating nurse Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 83 of 300
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 practitioner. Glaxo is seeking to “preclude ... [these] experts from offering any opinion that: (I) Paxil causes substance dependence, or is either addictive or habit-forming; or (ii) that plaintiff is addicted to Paxil or has developed substance dependence as a result of taking it.” Memorandum of Law in Support of Glaxosmithkline's Motion to Preclude Plaintiff's Experts' Testimony Pursuant to Fed.R.Evid. 702 and Daubert (“Def. Preclude Memo.”) at 4. In preparation for trial, each of these witnesses has been deposed and Mr. O'Donnell has provided an “expert” report on plaintiff's behalf. Apart from these witnesses, plaintiff proffers no other causation evidence. To support his theory that Paxil is defective due to an inadequate warning, plaintiff is relying solely upon the deposition testimony and “expert” report of Mr. O'Donnell. Glaxo argues for the preclusion of “[h]is warnings ‘opinions” ’ because O'Donnell is not qualified to testify on that issue and even if he were, “his opinions are neither reliable nor scientific.” Def. Preclude Memo. at 24. A. Standard for Admissibility of Expert Evidence There is a two-part inquiry in deciding the admissibility of expert evidence. First, in accordance with Fed.R.Evid. 702, “[t]he court should admit specialized expert testimony if the witness is ‘qualified as an expert by knowledge, skill, experience, training or education’ and his testimony ‘will assist the trier of fact to understand the evidence or to determine a fact in issue.” ’ Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 746 (2d Cir.1998) (quoting Fed.R.Evid. 702); see also Kass v. West Bend Company, No. 02–CV–3719, 2004 WL 2475606, at *4 (E.D.N.Y. Nov. 4, 2004) (citation omitted) (“As a threshold matter, the court must examine [the witness'] qualifications to testify about alternative ... designs.”) Second, “in the form of an opinion or otherwise,” the court must insure that “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed.R.Evid. 702. In other words, whether an expert witness' “opinion is ultimately admissible depend on the reliability and relevance of the proffered testimony.” Kass, 2004 WL 2475606, at *5. In this regard, the Supreme Court has instructed the by now oft-cited rule that a district court must act as “a gatekeeper to exclude invalid and unreliable expert testimony.” Bonton v. City of New York, No. 03 Civ. 2833, 2004 WL 2453603, at *2 (S.D.N.Y. Nov. 3, 2004) (citation omitted). This gatekeeping obligation applies whether the proposed expert testimony is based upon scientific knowledge, “technical,” or some other “specialized” knowledge. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171 (1999) (citing Fed.R.Evid. 702). As with other types of evidence, the court must also bear in mind that under Rule 403, even relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.” Fed.R.Evid. 403. In Daubert the Supreme Court soundly reasoned that “[e]xpert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 ... exercises more control over experts than over lay witnesses.” Daubert, 509 U.S. at 595, 113 S.Ct. at 2798 (quotation marks and citation omitted) (emphasis added). Finally, it should be noted that “[t]he proponent of expert evidence must establish admissibility under Rule 104(a) of the Federal Rules of Evidence by a preponderance of the proof.” Bonton, 2004 WL 2453603, at *2 (citing Bourjaily v. United States, 483 U.S. 171, 175–76 (1987)). This burden is the same regardless of whether the issue is the “qualification[s] of a person to be a witness, ..., or the admissibility of the evidence” itself. Fed.R.Evid. 104(a). In the present case, this requires plaintiff Devito to prove by a preponderance of the evidence that each of the three witnesses whom he is proposing to call as an expert qualify as such; and that the proposed testimony of each is admissible. *3 “In assessing expert qualifications, ‘[l]iberality and flexibility in evaluating qualifications should be the rule; the proposed expert should not be required to satisfy an overly narrow test of his own qualifications.” ’ Kass, 2004 WL 2475606, at *4 (quoting Lappe v. American Honda Motor Co., Inc., 857 F.Supp. 222, 227 (N.D.N.Y.1994) aff'd 101 F.3d 682 (2d Cir.1996)). “So long as the expert stays within the ‘reasonable confines of his subject area,’ the expert can fairly be considered to possess the ‘specialized knowledge’ required by Rule 702.” Id. (quoting Lappe, 857 F.Supp. at 227) (other citation omitted). “In Daubert, the Supreme Court articulated four factors pertinent to determining the reliability of an expert's reasoning or methodology: (1) whether the theory or technique relied on has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) whether there is a known or potential rate of error and the existence and maintenance of standards controlling the technique's operation; and (4) whether the theory or method has been generally accepted by the scientific community.” Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 84 of 300
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 Id. (citing Daubert, 509 U.S. at 593–94, 113 S.Ct. at 2796– 97). “These factors do not, however, constitute a ‘definitive checklist or test.” ’ Id. (quoting Daubert, 509 U.S. at 593, 113 S.Ct. at 2796). “Rather, they are intended to be applied flexibly, depending on the particular circumstances of the particular case at issue.” Id. (citing Kumho Tire, 526 U.S. at 150, 119 S.Ct. at 1175). In Kumho, the Supreme Court recognized that “when evaluating the admissibility of non-scientific expert testimony, the standard under Rule 702 is a liberal and flexible one, and the factors outlined in Daubert are merely guidelines in aiding a court's reliability determination.” Houlihan v. Marriott International, Inc., No. 00 Civ. 7439, 2003 WL 22271206, at *3 (S.D.N.Y. Sept. 30, 2003) (citing Kuhmo, 526 U.S. at 151, 119 S.Ct. at 1175). “For example, in some cases, reliability concerns may focus on personal knowledge or experience rather than strict scientific methods.” Id. (citation omitted). Regardless of which criteria a court applies to assess the admissibility of expert testimony, “the Supreme Court has made clear that the district court has a ‘gatekeeping function’ under Rule 702—is charged with ‘the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand.” ’ Amorgianos, 303 F.3d at 265 (quoting Daubert, 509 U.S. at 597, 113 S.Ct. 2786) (other citation omitted). Finally, it should be noted that “ ‘the gatekeeping inquiry must be tied to the facts of a particular case[.]” ’ Id. at 266 (quoting Kumho Tire, 526 U.S. at 150, 119 S.Ct. at 1175). 1. Deborah L. Sweeney a. Qualified? Glaxo's motion to preclude the testimony of Ms. Sweeney 2 requires little if any analysis. Glaxo is moving to preclude her testimony because it does not believe she is qualified to testify as an expert. Additionally, Glaxo contends that “her proposed opinion lacks a reliable scientific foundation.” Def. Preclude Memo. at 26. Plaintiff did not bother to respond to this aspect of Glaxo's motion. This lack of response amounts to a concession by plaintiff that the court should exclude Ms. Sweeney's testimony. Cf. Green v. Doukas, No. 97 CIV.8288CMGAY, 2001 WL 767069, at *8 (S.D.N.Y. June 22, 2001) (granting motion to preclude expert testimony because “plaintiff's failure to oppose the motion suggests ... it has merit[ ]”). Accordingly, the court grants Glaxo's motion to the extent it is seeking preclusion of Ms. Sweeney's testimony. See Amaker v. Coombe, No. 96 Civ. 1622, 2003 WL 21222534, at *6 (S.D .N.Y. May 27, 2003) (granting motion to preclude where plaintiff defaulted); see also Martinez v. Sanders, No. 02 Civ.5624, 2004 WL 1234041, at *3 (S.D.N.Y. June 3, 2004) (because plaintiff did not respond to motion, court granted same on “default” theory) (and cases cited therein). 2. Kevin W. George, M.D. *4 Glaxo also seeks to preclude the testimony of Dr. Kevin George. Dr. George is a psychiatrist who saw Mr. DeVito in consultation twice—once on November 2, 2001 and again on December 13, 2001. Glanville Aff., exh. G thereto at 51 and 76. Glaxo is not challenging Dr. George's qualifications, but rather the nature of his testimony. Glaxo is seeking to exclude Dr. George's testimony because he “has expressly disavowed all of the opinions that plaintiff ascribed to him in plaintiff's expert disclosure.” Def. Preclude Memo. at 25. Further, even if Dr. George had not disavowed those opinions, Glaxo argues that his “proposed testimony [is] inadmissible because it lacks any reliable scientific foundation.” Id. Plaintiff's response focuses almost exclusively on Dr. George's qualifications, which are not in dispute. As to the opinions which plaintiff attributes to Dr. George, the sum total of plaintiff's response is that any alleged “shortcomings” in that testimony go to weight and credibility, and not to admissibility. Memorandum of Law in Opposition to Defendant's Motion to Preclude Plaintiff's Experts (“Pl. Opp'n Preclude”) at 5. The court disagrees. As will be seen, Dr. George's purported opinion testimony does not have simply a few “shortcomings.” It has glaring holes in terms of reliability, not the least of which is Dr. George's unequivocal deposition testimony disavowing that he made the opinions which plaintiff claims he did. In his expert disclosure plaintiff specifically identifies Dr. George as an “expert” whom he intends to call at the time of trial. Glanville Aff., exh. E thereto at 1. According to plaintiff's expert disclosure, Dr. George will testify as follows: that in his opinion, within a degree of reasonable medical certainty, ... [1] the plaintiff is experiencing withdrawal reactions from the drug Paxil and that each time the plaintiff attempts to ‘wean’ himself off of the drug or Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 85 of 300
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 to lower the dosage of the drug, the plaintiff experiences said withdrawal; 2) ... the plaintiff's withdrawal signs and symptoms are a result of the plaintiff ingesting Paxil; and 3) ... the plaintiff has sustained injury in that he has been unable to discontinue the use of Paxil and has been caused to suffer the signs and symptoms of the withdrawal syndrome associated with the use and attempted discontinuance of Paxil. Glanville Aff., exh E thereto. Dr. George is confining his opinions to how Paxil allegedly effected plaintiff DeVito—not whether Paxil is capable generally of causing the symptoms of which DeVito complains. Therefore, although the plaintiff did not specify the purpose for which he is offering Dr. George's testimony, presumably it is being offered on the issue of specific causation. As noted earlier, ordinarily once a court finds a witness qualified as an expert, the next issue is the admissibility of that witness' opinion testimony. Here, however, it appears that each of the opinions which plaintiff attributes to Dr. George have been expressly disavowed in his deposition. Dr. George was asked point blank whether he had formed any of the three opinions quoted above, and whether he was prepared to testify to same. Each time he answered no. See Glanville Aff., exh. G thereto at 88–91. Obviously, if Dr. George has not formed the opinions which plaintiff is ascribing to him, necessarily he has no foundation, scientific or otherwise, for same. Accordingly, the court excludes the opinion testimony outlined above which plaintiff is attributing to Dr. George. *5 Even if Dr. George had not expressly disavowed the opinions set forth above, the court still must exclude his testimony. The crux of each of these opinions is that plaintiff DeVito has “withdrawal reactions,” or “withdrawal signs and symptoms” caused when he attempts to discontinue or taper below a certain dosage of Paxil. Glanville Aff., exh. E thereto. Dr. George's deposition testimony did not so state such. To be sure, Dr. George did testify that he used “Paxil withdrawal” as a “label to capture what [DeVito] was describing that he had been experiencing.” Id., exh. G thereto at 59 (emphasis added). When later in his deposition Dr. George was pressed as to whether or not he diagnosed plaintiff “as suffering from Paxil withdrawal [,]” he reiterated that he “applied that label to describe the symptoms that [DeVito] reported in relation to tapering Paxil.” Id. at 102 (emphasis added). There is an obvious difference between labeling a symptom which a patient describes and actually diagnosing that person. Significantly, Dr. George did not diagnosis plaintiff with Paxil withdrawal. Perhaps that is because “Paxil withdrawal is not a formal diagnosis within DMS–IV[.]” Id. at 94. (“The DSM–IV is the Diagnostic and Statistical Manual, the fourth revision of it, that psychiatrists generally base their diagnoses on.” Id.) And, “[t]here is no criteria for diagnosing somebody with Paxil withdrawal.” Id. at 60. For example, there are no “objective tests or assessments,” aside from skin inspection for signs of sweating, “that could have been done to determine whether those reports [by DeVito] were genuine[.]” Id. at 62. So, Dr. George simply took plaintiff's description of his symptoms at “face value,” and made no attempt to determine whether [DeVito's] report of those symptoms was genuine [.]” Id. at 62 and 79. In light of the foregoing, even if Dr. George were inclined to testify that Paxil specifically caused the symptoms which plaintiff claims it did, there is no foundation for this testimony. What is particularly revealing in this regard is Dr. George's candor when asked: “Have you ever made any determination as to why Mr. DeVito's tapering off of Paxil may be taking longer than some of your other patients?” ' Id. at 100. Dr. George replied, “I had no scientific way, ..., of explaining why he was having such difficulty tapering off Paxil.” Id. (emphasis added). Further, plaintiff DeVito saw Dr. George in the latter's capacity as a treating psychiatrist. Thus, as is plain from Dr. George's deposition, he was concerned primarily with the symptoms of which plaintiff complained, not determining the underlying cause. See Munafo v. Metropolitan Transportation Authority, Nos. 98 CV–4572, 00–CV–0134, 2003 WL 21799913, at *19 (E.D.N.Y. Jan. 22, 2003). Had Dr. George been focusing on the underlying cause, undoubtedly he would have performed a differential diagnosis, which “typically includes a physical examination, clinical tests, and a thorough case history.” Zwillinger v. Garfield Slope Housing Corp ., No. CV 94–4009, 1998 WL 623589, at *19 (E.D.N.Y. Aug. 17, 1998) (citations omitted). But, Dr. George did not. Without a differential diagnosis, specific causation cannot be established. See id. (“To establish specific causation, other possible causes for the symptoms experienced by plaintiff should be excluded by performing a ‘differential diagnosis.” ’) Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 86 of 300
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 3. James T. O'Donnell *6 Glaxo argues that the court must preclude O'Donnell's testimony for two reasons. First, he is not qualified as an expert as to the issues upon which he is being asked to opine— general and specific causation and the adequacy of the Paxil warnings. Second, even if he does qualify as an expert, Glaxo contends that the court should preclude his opinions because they lack the requisite scientific foundation and are otherwise unreliable. Plaintiff responds that O'Donnell's “experience and credentials are impressive [,]” whether the issue is his qualifications to testify as an expert on causation or as an expert on warnings. Pl. Preclude Memo. at 4. Plaintiff further responds that regardless of whether O'Donnell is opining on causation or warnings, any alleged “shortcomings” in that testimony go to “weight and credibility, and not [to] ... admissibility.” Id. at 5 (citation omitted). Plaintiff DeVito is offering O'Donnell's testimony on three separate issues, which require different areas of expertise. The court will examine O'Donnell's qualifications as to each. a. General Causation Glaxo offers a host of reasons as to why O'Donnell “is not an ‘expert’ on scientific issues concerning general or specific causation” with respect to SSRIs or Paxil. Def. Preclude Memo. at 7 (emphasis added). All of these reasons have merit. i. Qualified? This is not the first court to be confronted with the issue of whether Mr. O'Donnell is qualified to give an expert opinion here. In Newton v. Roche Laboratories, Inc., 243 F.Supp.2d 672 (W.D.Tex.2002), the court found that he was not qualified to render an opinion on general causation. Id. at 679. There, the parents of a 16 year old girl claimed that Accutane, a prescription acne medication manufactured by the defendant, caused or precipitated the onset of their daughter's schizophrenia. In much the same way plaintiff DeVito is offering O'Donnell's testimony here, the plaintiffs in Newton offered O'Donnell as an expert “to testify regarding general causation, i.e., that Accutane is pharmacologically capable of causing schizophrenia.” Id. at 677. After outlining a number of ways in which O'Donnell's qualifications were lacking, the court expressly found that he was not qualified to render such an opinion. To support that conclusion, the Newton court relied upon O'Donnell's deposition testimony, which is substantially similar to his deposition testimony in this case. For example, O'Donnell testified in Newton, as he did here, that “he has never earned an M.D., a Ph.D., or any degree in pharmacology.” Id. at 677; see also O'Donnell Dep'n at 24– 25 and 53. Yet, he “still holds himself out as a ‘doctor’ and a pharmacologist[.]” Id. As in Newton, “O'Donnell ... [continues to] grant[ ] himself the title of ‘doctor’ in reliance upon his Pharm.D degree, [which] he conceded in his deposition that in the majority of pharmacy schools, th[at] ... degree is ‘an entry-level degree’ that pharmacists must have to ... even practice pharmacy.” Id. at 677 n. 2 (citation omitted); see also O'Donnell Dep'n at 24–25. In contrast, to obtain a degree in pharmacology usually three or four years of graduate school is required. O'Donnell Dep'n at 25– 26. O'Donnell did get a graduate degree, but it was not in pharmacology. O'Donnell's formal education consists of a four year degree in pharmacy and a Master's Degree in clinical nutrition. Id. at 27. *7 In addition to questioning O'Donnell's background generally, the Newton court pointed out his “lack [of] appropriate pharmacological training relevant to the issues” therein, i.e. “Accutane, Vitamin A, schizophrenia, or psychosis[.]” Id. at 678. The same may be said here. There is no factual basis upon which this court can find that O'Donnell is an expert regarding SSRIs generally, not to mention Paxil or discontinuation of Paxil. Indeed, as his deposition testimony shows, O'Donnell's asserted expertise on these subjects is non-existent. See id. at 21, 24; 38–40; and 45. Given that SSRIs are a fairly recently developed class of drugs, understandably they were not the subject of O'Donnell's course work as an undergraduate, or when getting his Master's Degree in nutrition. Id. at 21 and 24. Since that time, O'Donnell has done nothing to advance his own knowledge as to SSRIs generally or Paxil in particular. When directly asked if he had “done any clinical research whatsoever relating to antidepressants,” O'Donnell replied that he had not. Id. at 38. He responded the same way when asked if he had “done any scientific research concerning Paxil or SSRI antidepressants[.]” Id. at 39. Moreover, O'Donnell conceded that the first time he “review[ed] ... scientific literature in connection with Paxil discontinuation symptoms[ ]” was for this case. Id. at 40–41. This is the sort of “litigation-drive expertise” which courts have eschewed. To illustrate, the court in Mancuso, 967 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 87 of 300
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 F.Supp. at 1443, reasoned that it could not “help but conclude that [plaintiff's expert] was not in fact an expert ... when he was hired by the plaintiffs, but that he subsequently attempted, with dubious success, to qualify himself as such be selective review of the relevant literature.” This appears to be an apt description of what Mr. O'Donnell attempted to do in the present case. The court stresses that it is no single factor which is dispositive of whether O'Donnell qualifies as an expert on the issue of general causation. Rather, it is the cumulative effect of the foregoing which convinces the court that O'Donnell lacks the lack of relevant “knowledge, skill, experience, training or education” to testify as an expert on the issue of general causation vis-a-vis the discontinuation of Paxil. As he admitted, O'Donnell is not a pharmacologist. Therefore, he cannot, as he does in his “expert report,” opine to a “reasonable pharmacological certainty,” that plaintiff is experiencing “withdrawal toxicity reactions from Paxil[.]” O'Donnell Rep. Clearly, allowing a pharmacist/nutritionist such as O'Donnell to testify in that way would run afoul of the rule that an expert must stay “within the reasonable confines of his subject area[.]” ' Kass, 2004 WL 2475606, at *2475606, at *4 (internal quotation marks and citations omitted). Simply put, the court agrees with the court's comment in Newton that “[p]laintiff's attempts to present O'Donnell as an expert pharmacologist [is] ... an extremely bold stretch.” Newton, 243 F.Supp.2d at 279. 3 ii. Reliability of Testimony? *8 O'Donnell's lack of education, training and background as to Paxil becomes even more apparent when viewed in terms of the opinions which he has rendered in this case. That is so because a “court's evaluation of qualifications is not always entirely distinct from the court's evaluation of reliability.” Pearson v. Young, No. CIV–99–1559–F, 2002 WL 32026157, at *3 (W.D.Okla. Jan. 17, 2002). O'Donnell's opinion as to causation is that “DeVito is experiencing withdrawal toxicity reactions from Paxil, and indeed, each time he attempts to wean or lower the dosage, he again experiences such infinity [sic].” Glanville Aff., exh. E thereto. O'Donnell states that when plaintiff's dosage of Paxil is lowered, he suffers from the following “withdrawal signs and symptoms [:] anxiety, jitery [sic], agitation, nausea, drowsiness, generalized discomfort and vertigo[.]” O'Donnell Report at 2. “For this opinion to be admissible, O'Donnell must have a reliable scientific basis to support not only (1) a casual relationship between” Paxil and the enumerated side-effects, “but also (2) his assertion that [Paxil] will produce these side-effects.” See Newton, 243 F.Supp.2d at 679 (emphasis added). O'Donnell's report and deposition testimony are void of a scientific basis to support either of those assertions. In terms of publications, O'Donnell testified that he was the editor of a non-peer reviewed book entitled “Drug Injury Liability, Analysis and Prevention.” Id. at 98–99. That book contained a mere six sentences on SSRIs, including the two sentences on Paxil. Id. at 99. Given that minimal reference to SSRIs, it is not surprising that that book contains nothing about discontinuation symptoms. See id. It further appears that he has performed absolutely no research regarding Paxil, much less its discontinuation. Id. at 38–39. What is more, O'Donnell has done no scientific or clinical research of any kind for almost two decades. The last time he did any such research was in he “early '80s as part of a pharmacology lab sabbatical,” where he was looking at vitamins and critical care drugs used in Intensive Care Units. Id. at 36. In light of the foregoing, to allow plaintiff to rely upon Mr. O'Donnell's opinions as to general causation clearly would violate Daubert' s “requirement that the expert testify to scientific knowledge—conclusions support by good grounds for each step in the analysis[.]” ' Amorgianos, 303 F.3d at 267 (citations and quotation marks omitted). b. Specific Causation It stands to reason that if Mr. O'Donnell lacks (which he does) the qualifications to testify as to general causation, he lacks the qualifications to testify as to specific causation. His opinion as to specific causation suffers from the same infirmities, detailed above, as to general causation. Accordingly, the court finds that Mr. O'Donnell does not have the requisite qualifications to testify as to specific causation; and even if he did, his opinions in that regard are unreliable. c. Warnings *9 Glaxo contends that because O'Donnell “lacks any pertinent qualifications[,]” Def. Memo. at 14, he should not be allowed to testify that in his opinion the “lack of ... a precaution and warning about withdrawal risk and the need to taper [when discontinuing Paxil] renders the product defective due to an inadequate warning. See O'Donnell Report at 3. Plaintiff did not directly respond to this argument. Included in the list of highlighted credentials in plaintiff's Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 88 of 300
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 memorandum of law is that Mr. O'Donnell “is currently involved in the teaching of New Drug Development and Regulations [.]” Pl. Opp'n Memo. at 2. However, plaintiff does not explain, or cite to any portion of O'Donnell's deposition explaining, how or why this position qualifies him to testify as an expert on warnings. As with the other issues upon which plaintiff intends to offer O'Donnell's testimony, plaintiff baldly retorts that O'Donnell's “extensive experience qualifies as specialized knowledge gained through experience, training, or education[.]” Pl. Memo. at 4 (internal quotation marks and citations omitted). And, once again, he relies upon the argument that Glaxo's reasons to preclude O'Donnell's testimony regarding warnings should be saved for trial, i.e. they should be used to attack O'Donnell's credibility and the weight which the jury might give to his opinions regarding Paxil warnings. i. Qualified? O'Donnell “claim[s] to be an expert in drug labeling[.]” O'Donnell Dep'n at 90. Presumably he is including drug warnings within the province of this supposed expertise. In any event, to qualify as an expert it is not enough for a witness to simply declare that he is one. Federal Rule of Evidence 702 requires more. As plaintiff acknowledged, a witness must satisfy the court that he has a certain amount of “knowledge, skill, experience, training or education [ ]” in the relevant field before he can be deemed an expert. See Nora Beverages, 164 F.3d at 746 (internal quotation marks and citation omitted). Close examination of O'Donnell's deposition testimony reveals that he is lacking in each of those areas when it comes to the subject of the adequacy of prescription drug warnings. O'Donnell's claimed expertise admittedly is “through experience,” not through formal education. O'Donnell Deposition at 90–92. His experience consists primarily of having attended continuing education (“CE”) programs, where drug labeling was a topic. Id. Those CE programs were to satisfy his pharmaceutical and nutritionist CE requirements, however; and he was unable to elaborate on the substance of same. See id. Furthermore, O'Donnell has not consulted with any pharmaceutical company “concerning the labeling for any antidepressant[.]” Id. at 96. O'Donnell agrees “that the FDA [Food and Drug Administration] is the highest authority on how drugs are labeled in this country[,]” but he has also never consulted with them “concerning the labeling for any antidepressant. Id. For that matter, O'Donnell has not worked for or consulted with the FDA in any capacity. See Glanville Aff. at 9, ¶ 39. Thus, O'Donnell's experience in this area is extremely limited. *10 Moreover, O'Donnell made two especially damaging concessions which seriously undermine the suggestion that he is an expert as to the adequacy of prescription drug warnings. O'Donnell readily agreed “that in assessing the adequacy of a label for a prescription drug, the expert rendering the opinion generally should be familiar with the clinical trials data on the drug as it relates to the side effect concerning which he is opining[.]” Id. at 192. Yet, O'Donnell frankly admitted that he had not reviewed any of the Paxil clinical trials data. See id. Similarly, O'Donnell conceded that “generally to reach a conclusion regarding the adequacy of a label for a prescription drug, the expert rendering the opinion should be familiar with at least a majority of the available medical literature on the drug as it relates to the side effect on which he is opining[.]” Id. at 193. Despite the foregoing, O'Donnell went on to testify that he has “not read the specific literature [ ]” relating to discontinuation symptoms of Paxil. Id. 193 and 45. In fact, he has only read “abstracts” of articles. Id. at 46–47. Finally, Mr. O'Donnell has not lectured on, or written anything (peer reviewed or not) about, “Paxil discontinuation symptoms apart from [his] export [sic] report in this case[.]” Id. at 45. As the foregoing clearly shows, Mr. O'Donnell does not “employ[ ] in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field[,]” which here is the adequacy of prescription drug warnings and Paxil in particular. See Kumho Tire, 526 U .S. at 152, 119 S.Ct. at 1176. Mr. O'Donnell may qualify as an expert in the fields of pharmacy or nutrition, but that is not the purpose for which his testimony is being offered here. Instead, his testimony is being offered on the adequacy of Paxil warnings. O'Donnell has never been drafter or been asked to draft a warning for any antidepressant, let alone for Paxil. Likewise, he has not done any research or written any publications on prescription drug warnings. Thus, whether judged in terms of his education or experience, does not rise to the level of “expertise ... that the jury would expect from a bona fide warnings expert.” See Robertson v. Norton, 148 F.3d 905, 907 (8 th Cir.1998) (internal quotation marks omitted). In sum, O'Donnell is being called upon to testify regarding the adequacy of the Paxil warning, an issue which clearly is outside the “reasonable confine [s] of his subject area[s,]” which are pharmacy and nutrition. See Kass, 2004 WL 2475606, at *4 (internal quotation marks and citations Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 89 of 300
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 omitted). Therefore, because O'Donnell does not “possess the specialized knowledge required by Rule 702[,]” the court finds that he is not qualified as an expert on the issue of the adequacy of the Paxil warning. See id. ii. Reliability of Testimony? *11 Given the nature of the claims which plaintiff is alleging in this case, plainly there is a close relationship between excluding the causation opinion and excluding the warning opinions which are being offered by O'Donnell. Miller v. Pfizer, Inc., 196 F.Supp.2d 1062 (D.Kan.2002), aff'd on other grounds, 356 F.3d 1326 (10 th Cir.2004), cert. denied, 125 S.Ct. 40 (Oct. 4, 2004), provides a good example of how a decision to preclude causation “expert” testimony impacts upon a decision to also preclude warning testimony. The plaintiff parents in Miller were suing the manufacturer of Zoloft, another SSRI, alleging that it caused their son to commit suicide. Similar to the present case, the plaintiffs in Miller asserted state law claims for strict liability for marketing defects and misrepresentations, and negligence for failure to test and warn. The court held that an “eminent” psychiatrist and neuropsychopharmocologist's proposed testimony regarding general causation, i.e. that Zoloft causes suicide, did not satisfy the Daubert criteria for admissibility because, in short, “he lack[ed] sufficient expertise on the issue of suicide.” Id. at 1087 and 1088. The Miller court, as is this court, was then confronted with the issue of whether that same doctor could qualify as an expert who would opine “that Zoloft labels do not adequately warn against the danger of SSRI-induced suicide.” Id. at 1088. After finding that the doctor was not an expert on that issue, the court soundly reasoned, “[i]f the jury will hear no evidence that [Paxil] causes [withdrawal symptoms/ addictive], it cannot possibly conclude that [Paxil] labels do not adequately warn against the danger that [Paxil] causes [such condition.]” Id. at 1089. That reasoning applies with equal force here. Even if O'Donnell qualifies as a prescription drug warning expert, because neither O'Donnell nor Dr. George (plaintiff's only proof as to causation) qualify to testify about causation, the former's warning testimony “would essentially be irrelevant to any larger issues in the case.” See id. Accordingly, there is no need to analyze whether O'Donnell's opinions as to warnings pass muster under Daubert. In short, plaintiff DeVito has not sustained his burden of proving by a preponderance of the evidence that Mr. O'Donnell is qualified to render an opinion as to general causation, specific causation, or the adequacy of Paxil warnings. Even if O'Donnell could somehow be deemed to have the requisite “specialized knowledge” to testify as to any or all of those issues, “courts do not have to credit opinion evidence connected to data ‘only by the ipse dixit of the expert.” ’ Prohaska, 138 F.Supp.2d at 438 (quoting General Elec. Co. v. Joiner, 522 U.S. 136, 118 S.Ct. (1997)). That is all O'Donnell has to rely upon; simply because he offers an opinion which he claims to be valid, plaintiff assumes it is so. This court will not, however. *12 For the reasons set forth above, the court grants in its entirety Glaxo's motion to preclude the testimony of Mr. O'Donnell; Dr. George; and Ms. Sweeney. II. Summary Judgment Motion The court assumes familiarity with the Supreme Court's trilogy of cases clarifying the governing legal standards on summary judgment motions, and sees no need to repeat those standards herein. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Celotex Corp. v. Catrett, 477 U.S. 317 (1986); and Matsushita Elec. Industr. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) It is an understatement to say that the wholesale exclusion of the testimony of O'Donnell, George and Sweeney significantly impacts plaintiff DeVito's case. As discussed at the outset causation is a necessary element of each of the five causes of action which plaintiff is alleging herein. Because plaintiff's only causation evidence has been excluded, it necessarily follows that Glaxo is entitled to summary judgment in its favor. See Kass, 2004 WL 2475606 (after granting motion to exclude testimony of plaintiff's claimed expert regarding the feasibility of alternative designs, court granted defense summary judgment motion because plaintiff could not satisfy the critical element of a design defect cause of action); and Zwillinger, 1998 WL 623589 (where plaintiff claimed that her exposure to defendants' carpeting causes her to develop immunotoxicity syndrome, court granted summary judgment in defendants' favor after excluding the of doctor's testimony, which was plaintiff's only causation evidence). To conclude, the court hereby GRANTS the motion by Smithkline Beecham Corporation d/b/a Glaxo Smithkline, to preclude the testimony of James O'Donnell; Dr. Kevin George; and Ms. Deborah Sweeney. The court further GRANTS the motion by Smithkline Beecham Corporation d/b/a Glaxo Smithkline for summary judgment pursuant to Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 90 of 300
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 Fed.R.Civ.P. 56 dismissing all of plaintiff Michael DeVito's claims as against it. IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2004 WL 3691343 Footnotes 1 The present action, which has been referred to as a “tag-along action,” is one of a number throughout the country wherein plaintiffs are alleging that Glaxo knew of the hazardous side effects of Paxil and either concealed, misrepresented or failed to warn of them. See In re Paxil Products Liability Litigation, 296 F.Supp.2d 1374 (Judicial Panel on Multidistrict Litigation 2003). In mid-February 2004, this court was advised that the Judicial Panel on Multidistrict Litigation (“the Panel) had conditionally transferred this action to the United States District Court fo the Central District of California for coordinated or consolidated pretrial proceedings pursuant to 28 U.S.C. § 1407.” Glaxo moved to vacate that conditional transfer as it pertained to the present case. When plaintiff did not respond, on June 15, 2004, the Panel vacated that conditional transfer as it relates to Mr. DeVito. 2 During her deposition Ms. Sweeney unequivocally testified, “I'm not a physician. I'm not a nurse practitioner.” Glanville Aff ., exh H thereto at 123. She holds an associates' degree in nursing, a bachelor of science degree in health and human services, and a nurse practitioner's degree.” Id. at 12, 17, 35–36. Thus, to refer to Ms. Sweeney as “Doctor Sweeney, as plaintiff does throughout his expert disclosure, is not only a misstatement but directly contradicts Sweeney's own testimony. Plaintiff's tendency to exaggerate or overstate certain things, as will be seen, is not limited to the qualifications of his experts. 3 O'Donnell's insistence on holding himself out as a pharmacologist, see O'Donnell Dep'n at 54, ignores at least one fundamental distinction between pharmacology and pharmacy—a distinction which is critical here. “Pharmacology can be fairly described as the study of the effect of drugs on living organisms. Pharmacy, on the other hand, is the profession of preparing and dispensing drugs.” Newton, 243 F.Supp.2d at 677, n. 1. It is self-evident that there is a vast difference in the education, experience and skill necessary to obtain degrees in these two different fields. Apparently O'Donnell recognizes this distinction because in Newton he “admitted ... that from approximately 1982 to 1985, he intentionally and falsely advertised that he possessed a doctorate in pharmacology in an attempt to attract more interest from lawyers for his consulting expert business.” Id. at 677, n .3 (citation omitted). He made that same admission in this deposition herein. O'Donnell Dep'n at 28–31. O'Donnell did change this advertisement because, in his words, it was “incorrect.” Id. at 29. This court cannot overlook what at best appears to be a serious lapse in judgment, however. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 91 of 300
Engles v. Jones, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2018 WL 6832085 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Jessie ENGLES, Plaintiff, v. Sgt. Jerry JONES, et al., Defendants. 6:13-CV-6461 EAW | Signed 12/28/2018 Attorneys and Law Firms Donald W. O'Brien, Jr., Woods Oviatt Gilman LLP, Rochester, NY, for Plaintiff. Bernard F. Sheehan, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendants. DECISION AND ORDER ELIZABETH A. WOLFORD, United States District Judge INTRODUCTION *1 Plaintiff Jessie Engles (“Plaintiff”) commenced the instant action on August 16, 2013. (Dkt. 1). The operative pleading is the Second Amended Complaint (Dkt. 60), which asserts various claims under 42 U.S.C. §§ 1983 and 1985 related to Plaintiff’s incarceration at the Five Points Correctional Facility (“Five Points”) and his treatment at the Central New York Psychiatric Center (“CNYPC”). Discovery in this matter has closed (Dkt. 85), and defendants Sgt. Jerry Jones (“Sgt. Jones”), C.O. Richard Hardy, C.O. Jeffrey Cavalussi, C.O. Elmer Parish, Sgt. Eric Morton, C.O. Travis Hill, C.O. Eric Farly, C.O. P. Harrison (“C.O. Harrison”), Nurse Audrey C. Sykes (“Nurse Sykes”), and Assistant Commissioner Mike Rasmus (“A.C. Rasmus”) (collectively “Defendants”) have filed a motion for partial summary judgment (Dkt. 88). In particular, Defendants seek summary judgment as to: (1) Plaintiff’s claims against C.O. Harrison, Nurse Sykes, and A.C. Rasmus; (2) Plaintiff’s claim for denial of access to the courts; (3) Plaintiff’s claim for denial of his right to practice his religion; (4) Plaintiff’s claim of “threats and intimidation” against Sgt. Jones; and (5) Plaintiff’s claims for violations of 42 U.S.C. § 1985. (Id.). For the reasons set forth below, Defendants' motion is denied as to Plaintiff’s claims against C.O. Harrison and granted in all other respects. BACKGROUND I. Procedural Background Plaintiff, then proceeding pro se, commenced this action on August 16, 2013. (Dkt. 1). 1 By leave of court, Plaintiff filed an Amended Complaint on June 17, 2014. (Dkt. 12). Defendants moved for dismissal or summary judgment as to the Amended Complaint (Dkt. 25; Dkt. 33); the Court granted in part and denied in part Defendants' motions on November 16, 2015, while also granting Plaintiff leave to file a second amended complaint as to certain claims (Dkt. 46). Thereafter, on January 11, 2016, the Court appointed counsel to represent Plaintiff. (Dkt. 57). Through counsel, Plaintiff filed the Second Amended Complaint on February 25, 2016. (Dkt. 60). The Second Amended Complaint contains the following causes of action: (1) excessive use of force and failure to intervene as to defendants Morton, Hill, Farly, Hardy, Parish, and Cavalussi; (2) “threats and intimidation” as to Sgt. Jones; (3) deliberate indifference/failure to provide proper medical care as to Nurse Sykes; (4) deprivation of Plaintiff’s First Amendment right to practice his religion as to Sgt. Jones and various John Doe defendants; (5) denial of access to the Courts as to various John Doe defendants; and (6) denial of due process in connection with a disciplinary hearing as to A.C. Rasmus. (Id. at 10-13). Discovery in this matter closed on June 1, 2017. (Dkt. 79). On May 16, 2018, Defendants filed the instant motion for partial summary judgment. (Dkt. 88). Plaintiff filed a response on September 4, 2018 (Dkt. 97) and Defendants replied on October 1, 2018 (Dkt. 99). II. Factual Background *2 The following facts are taken from Defendants' Local Rule 56 Statement of Facts (Dkt. 88-1) and Plaintiff’s response thereto (Dkt. 97-3), as well as the declarations and accompanying exhibits submitted by the parties. With respect to background facts that the parties have not briefed in connection with the instant motion, the Court has referenced the Second Amended Complaint. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 92 of 300
Engles v. Jones, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 In August 2010, Plaintiff was incarcerated at Five Points. Plaintiff testified at his deposition that he was entitled to have headphones as a special accommodation, but that no headphones had been provided to him. (Dkt. 97 at 25-26). Plaintiff further testified that on August 16, 2010, he informed C.O. Harrison that he needed his headphones or he was going to “wind up cutting up.” (Id. at 25). Plaintiff maintains that CO. Harrison stated he would “look and check into it” and “do what [he could] do to get [Plaintiff] some” headphones. (Id.). Plaintiff testified that, thereafter, Sgt. Jones “made rounds” and Plaintiff told him that he was “losing it” and that if he did not get his headphones, he was “going to wind up hurting [himself].” (Id.). Plaintiff also repeated his warnings to non- defendant Lieutenant Lavack, stating that if he did not receive the headphones that day, he was “going to wind up cutting up.” (Id. at 26). Lieutenant Lavack allegedly replied that the staff would “deal with [Plaintiff] then when [he] cut up,” which Plaintiff interpreted as Lieutenant Lavack “calling [his] bluff.” (Id.). Approximately 15 minutes after Plaintiff spoke with Lieutenant Lavack, C.O. Harrison came to Plaintiff’s cell with the “shower cart” and gave Plaintiff a razor and a nail clipper. (Id. at 27). Plaintiff testified that he immediately clipped the safety guard off the razor and used it to slit his wrist. (Id.). Plaintiff stated that he was bleeding for approximately 30 minutes before C.O. Harrison returned to collect the razor, and that he “let[ ] [the blood] leak out all over the floor” and “rubb[ed] it on the walls, into the toilet area.” (Id.). Plaintiff was thereafter transported for treatment for his wounds. (Dkt. 60 at ¶¶ 30-34). Plaintiff claims that while he was on a stretcher being transported, he was restrained by defendants Cavalussi, Hardy, and Farly, and defendants Parish, Hardy, and Hill assaulted him, which resulted in defendant Hill breaking Plaintiff’s finger, among other injuries. (Id. at ¶¶ 34, 36). Plaintiff further alleges that defendant Morton and Sgt. Jones were present during the assault and failed to intervene. (Id. at ¶ 38). Plaintiff was taken to the Cayuga Medical Center (“CMC”) on August 16, 2010. (Dkt. 97 at 30). Plaintiff was treated for a laceration to his left wrist and a fracture of his left third metacarpal bone. (Id.). A splint was placed on Plaintiff’s left hand. (Id. at 35). Plaintiff was discharged from CMC on August 17, 2010. (Id.). The discharge instructions related to his hand fracture state that “[t]he usual treatment is splinting for four to six weeks” and that he should not remove the splint until instructed to do so by his doctor. (Id.). In the Second Amended Complaint, Plaintiff alleges that upon his return from CMC on August 17, 2010, and until he was admitted to CNYPC, he was held in the “observation stripped cell” at Five Points. (Dkt. 60 at ¶ 43). Plaintiff claims that during this period of time, he was “supposed to receive his Ramadan meals following his daily fast” but that Sgt. Jones, who was supervising his suicide watch, ordered that Plaintiff’s Ramadan meals be withheld. (Id. at ¶ 44). Plaintiff alleges that pursuant to Sgt. Jones' directions, defendants John Doe Nos. 6-10 withheld all meals from Plaintiff for a seven- day period. (Id.). *3 On August 27, 2010, Plaintiff was admitted to CNYPC. (Dkt. 88-1 at ¶ 10; Dkt. 97-3 at ¶ 10). Nurse Sykes, a registered nurse, was assigned to CNYPC at that time. (Dkt. 88-1 at ¶¶ 3-5; Dkt. 97-3 at ¶¶ 3-5). Upon admission, Plaintiff was examined by non-defendant Dr. Ahmed for psychiatric issues and by non-defendant Dr. Kaskiw for physical issues. (Dkt. 88-1 at ¶ 14; Dkt. 97-3 at ¶ 14). At the time of admission, a notation was made incorrectly stating that Plaintiff had a splint on his left hand for a fracture of the fourth metacarpal (as opposed to his actual injury, a fracture of his third metacarpal). (Dkt. 88-1 at ¶ 18; Dkt. 97-3 at ¶ 19). Dr. Kaskiw examined Plaintiff’s hand when he was admitted and noted that there was slight swelling and a decreased range of motion but that Plaintiff was not in any pain. (Dkt. 88-1 at ¶¶ 20-23; Dkt. 97-3 at ¶¶ 20-23). Splints are not allowed on the wards at CNYPC because they contain metal, which presents a safety concern. (Dkt. 88-1 at ¶ 31; Dkt. 97-3 at ¶ 31). In accordance with this policy, Plaintiff’s splint was removed, and Dr. Kaskiw ordered that the fourth and fifth fingers on Plaintiff’s left hand be “buddy taped” together.” (Dkt. 88-1 at ¶¶ 32-33; Dkt. 97-3 at ¶¶ 32-33). Non-defendant Nurse Mullaly removed the splint from Plaintiff’s finger and Nurse Sykes applied the buddy tape. (Dkt. 88-5 at ¶ 14). Plaintiff’s hand continued to be monitored and the buddy taping was discontinued by Dr. Kaskiw on September 14, 2010. (Dkt. 88-1 at ¶¶ 45, 52; Dkt. 97-3 at ¶¶ 45, 52). Plaintiff’s medical records do not show any lasting issues related to his fractured metacarpal. (Dkt. 88-1 at ¶ 55; Dkt. 97-3 at ¶ 55). In opposition to Defendants' motion for summary judgment, Plaintiff has submitted a sworn declaration by Maria Martins, M.D. (“Dr. Martins”), an emergency medicine physician. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 93 of 300
Engles v. Jones, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 (Dkt. 97-2). Dr. Martins states that the removal of Plaintiff’s splint and the buddy taping of his fourth and fifth fingers “was not consistent with the standard of care” and “did not result in the appropriate immobilization of [Plaintiff’s] left hand.” (Id. at ¶ 6). Dr. Martins further indicates that Dr. Kaskiw and Nurse Sykes “proceeded on the basis of inaccurate information and, as a result, implemented an incorrect plan of care.” (Id. at ¶ 7). Upon returning to Five Points from CNYPC, Plaintiff was charged with various rules violations related to the events of August 16, 2010. (Dkt. 88-1 at ¶ 59; Dkt. 97-3 at ¶ 59). A.C. Rasmus conducted a disciplinary hearing related to the charges that concluded on January 5, 2011 (the “Disciplinary Hearing”). (Dkt. 88-1 at ¶ 60; Dkt. 97-3 at ¶ 60). A.C. Rasmus found Plaintiff guilty of four rules violations and imposed a punishment of 60-days confinement in the special housing unit (the “SHU”), two months loss of good-time credits, and loss of package, commissary, and phone privileges. (Dkt. 88-2 at 24). The SHU sentence was suspended until August 7, 2011, and was ultimately never served by Plaintiff. (Dkt. 88-1 at ¶¶ 62-63; Dkt. 97-3 at ¶¶ 62-63). Moreover, the time for implementing that sentence has now passed, and so Plaintiff will never be required to serve it. (Dkt. 88-2 at ¶¶ 17-19). There is no record that A.C. Rasmus’s determination based on the Disciplinary Hearing was ever reversed or expunged. (Dkt. 88-1 at ¶ 68; Dkt. 97-3 at ¶ 68). Plaintiff alleges that on February 3, 2011, Sgt. Jones verbally threatened him, telling him that if he filed a lawsuit regarding the events of August 16, 2010, his “stay [at Five Points] won't be nice.” (Dkt. 60 at ¶ 41). Plaintiff alleges that Sgt. Jones told him, in sum and substance, that if he pursued a claim against Sgt. Jones, Sgt. Jones would harm Plaintiff and cause him to be housed in the SHU. (Id.). Plaintiff claims that he filed a grievance regarding Sgt. Jones' verbal threats against him, but that “[u]pon information and belief, John Does Nos. 1 through 5 either failed or refused to process” his grievance. (Id. at ¶ 42). *4 The Department of Corrections and Community Supervision’s (“DOCCS”) records indicate that Plaintiff filed and appealed to completion only one grievance during the time period relevant to this litigation. (Dkt. 88-1 at ¶ 75; Dkt. 97-3 at ¶ 75). That grievance relates solely to Plaintiff’s claims of assault and denial of medical treatment related to the events of August 16, 2010, and makes no mention of any threats by Sgt. Jones, the denial of Ramadan meals, or failure to process any other grievances submitted by Plaintiff. DISCUSSION I. Standard of Review Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) ). “The moving party bears the burden of showing the absence of a genuine dispute as to any material fact....” Crawford v. Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). “Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant’s burden of proof at trial.” Johnson v. Xerox Corp., 838 F. Supp. 2d 99, 103 (W.D.N.Y. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) ). Once the moving party has met its burden, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) ). Specifically, the non- moving party “must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654 F.3d at 358. Indeed, “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). II. Claims Against C.O. Harrison Defendants seek summary judgment as to Plaintiff’s claims against C.O. Harrison. In support of this request, Defendants note that: (1) the sole allegation against C.O. Harrison is that he gave Plaintiff the razor Plaintiff used to cut himself; (2) Plaintiff does not allege that C.O. Harrison was present for or Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 94 of 300
Engles v. Jones, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 participated in the assault upon him; and (3) Plaintiff has not included C.O. Harrison as a defendant in any of the six causes of action set forth in the Second Amended Complaint. (Dkt. 88-7 at 6-7). Plaintiff argues in opposition that the allegations in the Second Amended Complaint, which Plaintiff reiterated at his deposition, establish that CO. Harrison was deliberately indifferent to a risk of danger to Plaintiff’s safety. (Dkt. 97-4 at 6-7). In reply, Defendants argue that the Second Amended Complaint does not contain a deliberate indifference claim with respect to C.O. Harrison. (Dkt. 99-2 at 1-2). *5 The Court finds, on the record before it, that summary judgment as to C.O. Harrison is not warranted. The Court acknowledges that the Second Amended Complaint does not explicitly state a deliberate indifference claim as to C.O. Harrison. However, it is well-established that “[t]he function of the pleadings is to give opposing parties notice of the facts on which the pleader will rely, and, in the absence of prejudice to the opposing party, the court may allow the pleadings to be amended to conform them to the evidence at any time, even after judgment.” Wierzbic v. Cty. of Erie, No. 13-CV-978S, 2018 WL 550521, at *11 (W.D.N.Y. Jan. 25, 2018) (quotation omitted). Moreover, “an issue raised for the first time in a motion for summary judgment may start the amendment process.” Id. (quotation omitted); see also Chartier v. Matthews Assocs., No. 93 CIV. 1212 (PKL), 1994 WL 582938, at *2 (S.D.N.Y. Oct. 20, 1994) (“A district court may, in its sound discretion, ‘construe[ ] [a party’s] summary judgment motion also as a motion to amend [that party’s pleading] under Fed. R. Civ. Pro. 15(a).’ ”) (alterations in original) (quoting Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993) ). Here, the Court finds it appropriate to construe Plaintiff’s opposition to Defendants' motion for summary judgment as a request to amend the Second Amended Complaint to assert a deliberate indifference claim as to C.O. Harrison and to grant that request. For the reasons set forth below, the factual allegations set forth in the Second Amended Complaint (and reiterated by Plaintiff at deposition) are sufficient to support a deliberate indifference claim as to C.O. Harrison and the allegations put Defendants on notice as to the basis for that claim. Accordingly, “there is no basis for Defendants to claim surprise or prejudice by the ... claim[.]” Wierzbic, 2018 WL 550521, at *11 (on a motion for summary judgment, deeming complaint amended to include trespass claim because although “trespass was not a named cause of action,” the factual allegations were “sufficient to state a claim for trespass and put Defendants on notice of a trespass claim”). Accordingly, the Court will permit Plaintiff to file a Third Amended Complaint that contains an express claim for deliberate indifference to serious medical needs against C.O. Harrison. To be clear, the Third Amended Complaint cannot contain new factual allegations, but is solely for the purpose of clarifying the record and setting forth explicitly the legal theory on which C.O. Harrison was included as a defendant in this matter. Plaintiff must file the Third Amended Complaint by no later than January 11, 2019, and Defendants must file their Answer thereto by no later than January 25, 2019. The Third Amended Complaint should comport with the instant Decision and Order in all respects and include only those claims (and Defendants) as to which the Court has allowed Plaintiff to proceed. The Court further finds that there are genuine issues of material fact regarding Plaintiff’s deliberate indifference claim against CO. Harrison. “The Eighth Amendment explicitly prohibits the infliction of cruel and unusual punishment.... A prisoner advancing an Eighth Amendment claim for denial of medical care must allege and prove deliberate indifference to a serious medical need.” Jean v. Barber, No. 9:09-CV-430 MAD/GHL, 2011 WL 2975218, at *4 (N.D.N.Y. July 21, 2011) (quotation omitted). “[T]here are both objective and subjective requirements to succeed on an Eighth Amendment claim regarding serious mental health needs. First, the danger posed by the deliberate indifference must be ‘sufficiently serious’ from an objective perspective; and second, the defendant must have acted with deliberate indifference to that need (i.e., subjectively failed to address the danger).” Young v. Choinski, 15 F. Supp. 3d 194, 199 (D. Conn. 2014) (emphasis in original). *6 In the specific context of a suicide risk, “[c]ourts which have considered the issue have ruled that in the context of suicide, jailers are not required to safeguard every inmate;” however, they are required to protect inmates “presenting a ‘strong likelihood of suicide.’ ” Jean, 2011 WL 2975218, at *4 (quoting Burke v. Warren County Sheriffs Dep't No. 90-CV-597, 1994 WL 6755042, at *6 (N.D.N.Y. Nov. 25, 1994) ); see also Young, 15 F. Supp. 3d at 199 (“propensities to attempt suicide, harm oneself, and/or exhibit severe depression or anxiety attacks” are “sufficiently serious” to support an Eighth Amendment claim). A “previous threat” is sufficient to establish a strong likelihood of suicide. Jean, 2011 WL 2975218, at *4. Here, Plaintiff testified at his deposition that he informed C.O. Harrison that, if he did not receive his requested Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 95 of 300
Engles v. Jones, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 headphones, he was going to “wind up cutting up.” (Dkt. 97 at 25). A reasonable jury could find that this was a threat of suicide. Plaintiff further testified that despite having witnessed this explicit threat of self-harm, C.O. Harrison nonetheless provided Plaintiff with a razor the very same day. (Id. at 27). Were a jury to credit this testimony, it could reasonably conclude that C.O. Harrison was deliberately indifferent to Plaintiff’s serious mental health needs— namely, his propensity to attempt suicide or otherwise harm himself. See Young v. Choinski, 15 F. Supp. 3d 172, 185 (D. Conn. 2014) (denying motion for summary judgment where the plaintiff inmate informed the defendant corrections officer that he was “feeling suicidal” and the defendant failed to take any action to obtain mental health assistance for the plaintiff); cf. Kelsey v. City of N.Y., 306 F. App'x 700, 703 (2d Cir. 2009) (noting that “deliberate indifference [is] lacking where officers take affirmative and reasonable steps to protect detainees from suicide”). Accordingly, summary judgment as to Plaintiff’s claim against C.O. Harrison is not warranted. III. Claims Under 42 U.S.C. § 1985 In the Second Amended Complaint, Plaintiff purports to assert his excessive use of force and failure to intervene, “threats and intimidation,” and free exercise of religion claims pursuant to 42 U.S.C. § 1985, as well as 42 U.S.C. § 1983. (Dkt. 60 at ¶¶ 53, 56, 62). Defendants argue that, to the extent these claims are premised on 42 U.S.C. § 1985, no reasonable jury could find in Plaintiff’s favor. The Court agrees. Section 1985 prohibits conspiracies to violate an individual’s civil rights. To prevail on a § 1985 conspiracy claim, a plaintiff must show: “1) a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.” Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015) (quoting Britt v. Garcia, 457 F.3d 264, 269 n.4 (2d Cir. 2006) ). “The conspiracy must also be motivated by some racial or perhaps otherwise class-based, invidious discriminatory animus.” Id. (quotation omitted). Here, Defendants argue that there is no evidence tending to show a conspiracy, nor any evidence of discriminatory animus. (Dkt. 88-7 at 7-8). Defendants further argue that, in any event, the intracorporate conspiracy doctrine bars a § 1985 claim against DOCCS employees acting within the scope of their employment. (Id. at 8). Plaintiff’s opposition papers fail to respond to these arguments. *7 “In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant’s burden will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party’s claim.” Goenaga v. Mar. of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). Here, Defendants have pointed to an absence of any evidence to support a finding of conspiracy or a finding of discriminatory animus, both of which are essential elements of a § 1985 claim. Plaintiff has failed, in opposition, to produce or identify any such evidence. See Hall v. Bevier, No. 06-CV-00505F, 2009 WL 3165604, at *4 (W.D.N.Y. Sept. 28, 2009) (granting summary judgment as to § 1985 claim where the plaintiff failed to submit any evidence supporting a claim of discriminatory animus or establishing the existence of a conspiracy). Moreover, Defendants are correct that Plaintiff’s § 1985 claims are barred by the intracorporate conspiracy doctrine. See Richard v. Leclaire, No. 915CV00006BKSTWD, 2017 WL 4349381, at *5 (N.D.N.Y. Sept. 29, 2017) (noting the “appropriateness of applying the [intracorporate conspiracy] doctrine in a prison setting” and dismissing claims against DOCCS employees). Accordingly, Defendants have satisfied their burden of establishing their entitlement to summary judgment as to Plaintiff’s § 1985 claims. IV. Deliberate Indifference Claim as to Nurse Sykes Defendants request summary judgment as to Plaintiff’s Eighth Amendment deliberate indifference claim as to Nurse Sykes. Defendants argue that no reasonable jury could conclude that Nurse Sykes had the required state of mind to support a deliberate indifference claim. For the reasons that follow, the Court agrees. As noted above, the Eighth Amendment prohibits cruel and unusual punishment, which encompasses deliberate indifference to an inmate’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). “The deliberate indifference standard requires the plaintiff to prove that the prison official knew of and disregarded the plaintiff’s serious medical needs.” Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). “ ‘Deliberate indifference’ describes a mental state more blameworthy than negligence; but a plaintiff is not required to show that the defendant acted for the very purpose of causing harm or with knowledge that harm will result. Deliberate indifference is a state of mind that is the equivalent Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 96 of 300
Engles v. Jones, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 of criminal recklessness.” Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (internal quotations and citations). Here, Defendants argue that regardless of whether Plaintiff has established that he had a serious medical need, there is no evidence that Nurse Sykes acted with deliberate indifference. (Dkt. 88-7 at 10-14). Instead, Defendants argue the evidence of record demonstrates that Nurse Sykes (and the other medical staff at CNYPC) “did their best to address [Plaintiff’s] concerns.” (Id. at 11). The Court agrees with Defendants that, on the record before it, no reasonable jury could find that Nurse Sykes knew of and disregarded Plaintiff’s medical needs. Plaintiff’s claims against Nurse Sykes are based on his contention that she and Dr. Kaskiw “disregard[ed] the discharge instructions” from CMC and did not “bother[ ] to review the [CMC] records” before deciding that buddy taping Plaintiff’s fingers was medically appropriate. (Dkt. 97-4 at 8-9). Plaintiff argues that, because of this purported failure to review the CMC records, Nurse Sykes had a “mistaken understanding of the nature of Plaintiff’s injuries”—namely, she was unaware that he sustained a fracture to his third metacarpal, “which is not a finger but a bone of the hand”—based on which she incorrectly thought that buddy taping Plaintiff’s fingers “would provide the necessary immobilization to allow the fracture of Plaintiff’s hand to heal properly.” (Id.). Plaintiff’s deliberate indifference claim against Nurse Sykes is defective in several ways, most significantly because it is inconsistent with the uncontroverted evidence of record. In direct contradiction to Plaintiff’s claim that Nurse Sykes and Dr. Kaskiw simply disregarded the discharge instructions from CMC, Nurse Sykes has submitted a sworn declaration indicating that she did not have access to Plaintiff’s medical records from CMC when she treated him in August 2010. (Dkt. 99 at ¶¶ 8-12). Nurse Sykes further explained that it was not unusual, when a patient is admitted to CNYPC from DOCCS, for “paperwork from an outside hospital” not to accompany that patient. (Id. at ¶¶ 13-16). As such, the only information Nurse Sykes had at the time she was treating Plaintiff was a statement from DOCCS that he had fractured his fourth metacarpal. (Id. at ¶ 19). Nurse Sykes cannot be held liable for information that was unavailable to her, nor could any reasonable jury find, on the record before the Court, that she deliberately ignored the discharge instructions from CMC, as Plaintiff argues. *8 Plaintiff’s reliance on Dr. Martins' declaration to establish deliberate indifference is also unavailing, for multiple reasons. 2 First, Dr. Martins has offered her expert opinion that Nurse Sykes' actions did not comport with the appropriate medical “standard of care.” (Dkt. 97-2 at ¶ 6). However, it is well-established that expert testimony that a defendant “deviated significantly from the appropriate standard of care ... constitutes, at most, a medical malpractice claim which may be cognizable in a state court but not in a federal § 1983 action.” Bowman v. Campbell, 850 F. Supp. 144, 147 (N.D.N.Y. 1994); see also Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (“[N]egligence, even if it constitutes medical malpractice, does not, without more, engender a constitutional claim.”). Second, Dr. Martins' opinion is based on her knowledge that Plaintiff had suffered a fracture in the third metacarpal, but that information was not available to Nurse Sykes at the time she treated Plaintiff. In other words, nothing in Dr. Martins' declaration suggests that Nurse Sykes' actions in buddy taping Plaintiff’s fingers were taken recklessly or in bad faith, as opposed to being a sincere (if ultimately ineffectual) attempt to immobilize the fracture in Plaintiff’s hand. To the contrary, Dr. Martins acknowledges that the buddy taping was based on a “misunderstanding of the true nature of [Plaintiff’s] fracture.” (Dkt. 97-2 at ¶ 13). Mistakes and misunderstandings in providing medical treatment do not constitute deliberate indifference. See Estelle, 429 U.S. at 105-06 (“an inadvertent failure to provide adequate medical care” does not violate the Eighth Amendment). The Court rejects Plaintiff’s argument that it was inappropriate for Dr. Kaskiw and Nurse Sykes to take into account the potential danger of allowing Plaintiff to possess a metal splint in determining the appropriate medical course of action. Plaintiff presented a known suicide risk. As the Court discussed in the context of Plaintiff’s claims against C.O. Harrison, Nurse Sykes and the other personnel at CNYPC were therefore under an obligation to take reasonable steps to prevent Plaintiff from harming himself. As such, it was wholly appropriate for CNYPC staff to take into account the potential of a metal splint to be sharpened and used for inflicting harm in determining whether buddy taping was a preferable alternative. The same is true for the other alternative treatments suggested by Dr. Martins. In particular, Nurse Sykes explained that it would be inappropriate for a suicidal patient to be given an ACE bandage or lengths of gauze because they could be used in an attempt to hang oneself, and that an Orthoglass cast could be removed and used as a weapon. (Dkt. 99 at ¶¶ 38-43). These are not merely Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 97 of 300
Engles v. Jones, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 arbitrary rules, as Plaintiff seems to suggest, but necessary considerations when dealing with patients with a propensity for self-harm. In sum, the record before the Court establishes, at most, that Nurse Sykes was mistaken in her opinion that buddy taping Plaintiff’s fingers was a medically appropriate course of treatment, because she lacked all the pertinent information. This is insufficient to demonstrate deliberate indifference to Plaintiff’s medical needs. Accordingly, Defendants' motion for summary judgment is granted as to Plaintiff’s claim against Nurse Sykes. 3 V. Failure to Exhaust Administrative Remedies In his Second Amended Complaint Plaintiff asserts a claim for “threats and intimidation” against Sgt. Jones and a claim for deprivation of Plaintiff’s First Amendment right to the free exercise of his religion (based on the alleged denial of Ramadan meals) as to Sgt. Jones and several John Doe defendants. (Dkt. 60 at ¶¶ 54-56, 60-62). Defendants seek summary judgment as to these two claims, contending that Plaintiff failed to exhaust his administrative remedies with respect to them. *9 The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 ..., 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.A. § 1997e. “[T]he PLRA’s exhaustion requirement applies to ‘all inmate suits about prison life, whether they involve general circumstances or particular episodes.’ ” Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002) ). To satisfy the PLRA’s exhaustion requirement, “prisoners in New York must ordinarily follow a three-step [DOCCS] grievance process. The first step in that process is the filing of a grievance with the Inmate Grievance Resolution Committee. Next, the inmate may appeal an adverse decision to the prison superintendent. Finally, the inmate may appeal the superintendent’s decision to the Central Office Review Committee (‘CORC’). In general, it is only upon completion of all three levels of review that a prisoner may seek relief in federal court under § 1983.” Crenshaw v. Syed, 686 F. Supp. 2d 234, 236 (W.D.N.Y. 2010) (internal citation omitted). “[T]he PLRA does not require the exhaustion of all administrative remedies, but only those that are ‘available’ to the inmate. To be “available” under the PLRA, a remedy must afford ‘the possibility of some relief for the action complained of.’ ” Hubbs v. Suffolk Cty. Sheriff’s Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (quoting Abney v. McGinnis, 380 F.3d 663, 667 (2d Cir. 2004) ). The Supreme Court has recognized three circumstances in which an administrative remedy is “unavailable”: (1) “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”; (2) when the “administrative scheme” is “so opaque that it becomes, practically speaking, incapable of use”; and (3) “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016). “Whether an administrative remedy was available to a prisoner in a particular prison or prison system is ultimately a question of law, even when it contains factual elements.” Id. With respect to the burden of proof, “failure to exhaust is an affirmative defense” which “must be pleaded and proved by a defendant.” Lopez v. Cipolini, 136 F. Supp. 3d 570, 580 (S.D.N.Y. 2015) (citations and quotations omitted). However, once a defendant demonstrates that the plaintiff has not exhausted his administrative remedies, “the burden of proof shifts to the plaintiff to show that his case falls under at least one of the exceptions” to the exhaustion requirement. Perry v. Rupert, No. 9:10-CV-1033 LEK/TWD, 2013 WL 6816795, at *4 (N.D.N.Y. Dec. 20, 2013); see also Hubbs v. Suffolk Cty. Sheriffs Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (once defendants meet their initial burden of showing failure to exhaust, the burden shifts to the plaintiff to “demonstrate that other factors ... rendered a nominally available procedure unavailable as a matter of fact”). In this case, Defendants have met their initial burden of demonstrating that Plaintiff failed to exhaust his threats and intimidation claim and his free exercise claim. DOCCS' records regarding Plaintiff show that he “filed and appealed to completion only one grievance at Five Points Correctional Facility around the time of the alleged attack in August 2010.” (Dkt. 88-1 at ¶ 75). This grievance, a copy of which has been submitted to the Court, relates solely to Plaintiff’s claims of assault and denial of medical care and contains no mention of threats and intimidation by Sgt. Jones or denial of Ramadan meals. (Dkt. 88-3 at 30). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 98 of 300
Engles v. Jones, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 *10 Plaintiff maintains that, notwithstanding the lack of any record, he did file a grievance regarding Sgt. Jones' actions, which was improperly processed. (Dkt. 97-4 at 12-14). Plaintiff states that he cannot provide proof of such filing because “all of his legal paperwork was lost at Wende Correctional Facility.” (Id.). In the alternative, Plaintiff argues that the “extreme emotional turmoil” he was experiencing excuses his failure to file grievances. (Id. at 14). On the record before the Court, there are no genuine issues of material fact regarding Plaintiff’s failure to exhaust his administrative remedies. Defendants have demonstrated through admissible evidence that there is no record of Plaintiff having grieved his threats and intimidation claim or his free exercise claim. Plaintiff’s unsupported assertion that he filed a grievance but that it was somehow lost or destroyed is insufficient to establish a genuine issue of material fact. See Scott v. Kastner-Smith, 298 F. Supp. 3d 545, 555 (W.D.N.Y. 2018) (“[C]ourts have consistently held ... that an inmate’s general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.” (quotation omitted) ); Mims v. Yehl, No. 13-CV-6405-FPG, 2014 WL 4715883, at *4 (W.D.N.Y. Sept. 22, 2014) (inmate’s “unsupported statement” that he has submitted a grievance is “insufficient at the summary judgment stage”); Veloz v. N.Y., 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004) (“[An] inmate’s unsupported claims that his grievances were lost at the Grievance Committee Office or destroyed by officers ... fails to excuse [the] inmate from fully grieving remedies[.]” (citation omitted) ). Plaintiff’s argument that he was experiencing emotional turmoil that prevented him from filing grievances is similarly unavailing. Plaintiff rests his argument on the “special circumstances” exception to the exhaustion requirement previously recognized by the Second Circuit. (See Dkt. 97-4 at 14 (citing Hemphill v. N.Y., 380 F. 3d 680, 686 (2d Cir. 2004) ). However, the Supreme Court in Ross expressly rejected the application of any such exception, holding that “the PLRA’s text suggests no limits on an inmate’s obligation to exhaust—irrespective of any ‘special circumstances.’ ” 136 S. Ct. at 1856; see also Scott, 298 F. Supp. 3 at 551 (noting that “the third prong of Hemphill, relating to ‘special circumstances,’ was abrogated by the Supreme Court’s decision in Ross”). “This Court is not aware of any cases post-Ross ... to have found ... that a prisoner’s failure to exhaust was excused because that prisoner’s mental health condition rendered unavailable otherwise-available administrative remedies.” Galberth v. Washington, No. 14 CIV. 691 (KPF), 2017 WL 3278921, at *10 (S.D.N.Y. July 31, 2017), aff'd, 743 F. App'x 479 (2d Cir. 2018). To the contrary, as noted by the Galberth court, “[w]here courts have been presented with inward-looking justifications for a failure to exhaust, which are based in a prisoner’s subjective sense of what was available, such justifications have been rejected.” Id. (collecting cases). In any event, even assuming that Plaintiff’s emotional turmoil could excuse his failure to exhaust in theory, there is no evidence that Plaintiff was actually rendered incapable of using the grievance process. To the contrary, Plaintiff’s emotional state did not prevent him from filing and appealing to completion a grievance related to the alleged assault and denial of medical care. See Bennett v. James, 737 F. Supp. 2d 219, 227 (S.D.N.Y. 2010), aff'd, 441 F. App'x 816 (2d Cir. 2011) (inmate’s claim that his physical and emotional condition prevented him from exhausting his administrative remedies was inconsistent with having filed two federal lawsuits during the relevant time period). Under these circumstances, Defendants have borne their burden of demonstrating that Plaintiff failed to exhaust his administrative remedies, and Plaintiff has not shown that any exceptions to the exhaustion requirement apply. As such, Defendants are entitled to summary judgment as to Plaintiff’s claim for threats and intimidation by Sgt. Jones and Plaintiff’s claim for denial of his right to the free exercise of his religion. VI. Denial of Access to Courts Claim *11 In the Second Amended Complaint, Plaintiff asserts a denial of access to the courts claim as to five John Doe defendants, based on the alleged failure to properly process his grievance. (Dkt. 60 at ¶¶ 63-68). These John Doe defendants have never been identified. Defendants seek summary judgment on this claim based on the failure to identify the John Doe defendants and further argue that, in any event, there is no constitutional right to a grievance process. (Dkt. 88-7 at 20-21). Plaintiff has not responded to these arguments. Defendants are entitled to summary judgment on Plaintiff’s claim for denial of access to the courts. Discovery in this matter has closed and there is no indication in the record before the Court that the identity of the John Doe defendants has been ascertained. Dismissal of claims against John Doe defendants is appropriate where a plaintiff “has had ample time and opportunity to discover the identity of the John Doe Defendants and serve them,” but has failed to do so. Jones v. Rock, No. 9:12-CV-0447 NAM/TWD, 2015 WL 791547, at *21 (N.D.N.Y. Feb. 24, 2015); see also Coward v. Town Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 99 of 300
Engles v. Jones, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 & Vill. of Harrison, 665 F. Supp. 2d 281, 299 (S.D.N.Y. 2009) (“The John Doe Defendants are entitled to summary judgment on the grounds ... that Plaintiff had ample time to identify them but has failed to do so or to demonstrate why he has been unable to do so in the five years since he initiated this lawsuit.”). As such, the Court finds that Defendants are entitled to summary judgment as to Plaintiff’s denial of access to the courts claim because that claim is asserted solely against John Doe defendants who have never been identified. VII. Due Process Claim Against A.C. Rasmus In the Second Amended Complaint, Plaintiff alleges that A.C. Rasmus' conduct of the Disciplinary Hearing violated his right to due process. (Dkt. 60 at ¶¶ 69-72). Defendants seek summary judgment as to this claim, arguing that Plaintiff cannot show the deprivation of a protected liberty interest, because (1) the 60-day SHU sentence was suspended and never served and (2) the loss of good-time credits cannot be challenged in a § 1983 proceeding. (Dkt. 88-7 at 21-25). Plaintiff has not responded to this aspect of Defendants' motion. To maintain a claim for violation of the right to either procedural or substantive due process, Plaintiff must demonstrate the deprivation of a protected liberty interest. Baez v. Pinker, 673 F. App'x 50, 52 (2d Cir. 2016); see also Israel v. Bradt, 228 F. Supp. 3d 237, 239 (W.D.N.Y. 2017). “However, lawfully incarcerated persons retain only a narrow range of protected liberty interests.” Klos v. Haskell, 48 F.3d 81, 86 (2d Cir. 1995) (quotation omitted). “To establish a constitutionally protected liberty interest triggering due process concerns, plaintiff must show that he was subjected to an atypical and significant hardship ... in relation to the ordinary incidents of prison life.” Israel, 228 F. Supp. 3d at 239. If a prisoner-plaintiff “cannot establish that he had a protected liberty interest in being free from the punishment that was imposed upon him as a result of [a] hearing, he has no due process claim under the Fourteenth Amendment.” Scott v. Albury, 156 F.3d 283, 286 (2d Cir. 1998). Defendants are correct that the suspended 60-day SHU sentence does not constitute a protected liberty interest. See Young v. Hoffman, 970 F.2d 1154, 1156 (2d Cir. 1992) (where the plaintiff did not serve the sentence imposed at a disciplinary hearing, he “suffered no interference with a liberty interest and has no valid claim for relief”); Crenshaw v. Korbar, No. 09-CV-6167L, 2013 WL 1681833, at *3 (W.D.N.Y. Apr. 17, 2013) (“To make out a valid Fourteenth Amendment claim for a denial of due process, plaintiff must show that defendants deprived him of a protected liberty interest. Plaintiff can make no such showing, for the simple reason that he never served any time on the charges [at issue].”). *12 Defendants are also correct that Plaintiff cannot maintain a § 1983 claim based on the loss of good-time credits. The loss of good-time credits “impacts the overall length of confinement” and “[w]hen a litigant makes a constitutional challenge to a determination that affects the overall length of his imprisonment, the ‘sole federal remedy is a writ of habeas corpus.’ ” King v. Wenderlich, No. 14- CV-6491-FPG, 2018 WL 3756751, at *5 n.1 (W.D.N.Y. Aug. 8, 2018) (quoting Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) ). Moreover, pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), a plaintiff seeking money damages “for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid ... must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-487. “In a subsequent case, Edwards v. Balisok, 520 U.S. 641 (1997), the Court made clear that Heck’s favorable termination rule applies to challenges made under § 1983 to procedures used in disciplinary proceedings that deprived a prisoner of good-time credits.” Peralta v. Vasquez, 467 F.3d 98, 103 (2d Cir. 2006). Here, there is no indication (and Plaintiff does not argue) that A.C. Rasmus' determination at the Disciplinary Hearing has ever been reversed, expunged, or otherwise called into question. Accordingly, Plaintiff cannot challenge the loss of his good- time credits in this § 1983 action. The other penalties imposed by A.C. Rasmus (loss of package, commissary, and phone privileges) (see Dkt. 88-2 at 24) do not rise to the level of deprivation of a protected liberty interest. See, e.g., Johnson v. Enu, No. 08-CV-158 (FHS/ DNH), 2011 WL 3439179, at *12 (N.D.N.Y. July 13, 2011) (suspension of recreation, commissary, and phone privileges does not implicate a protected liberty interest); Smart v. Goord, 441 F. Supp. 2d 631, 640 (S.D.N.Y. 2006) (“the loss of phone, package, and commissary privileges does not give rise to a protected liberty interest”). Accordingly, the Court agrees with Defendants that Plaintiff cannot establish that he was deprived of a protected liberty interest and therefore cannot maintain a claim for deprivation of due process. The Court accordingly grants Defendants' motion for summary Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 100 of 300
Engles v. Jones, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 judgement as to Plaintiff’s due process claim against A.C. Rasmus. CONCLUSION For the foregoing reasons, Defendants' motion for partial summary judgment (Dkt. 88) is denied as to Plaintiff’s claim against C.O. Harrison and granted in all other respects. Plaintiff’s opposition to Defendants' motion (Dkt. 97) is deemed a request to amend the Second Amended Complaint to assert a deliberate indifference claim as to C.O. Harrison and is granted. Plaintiff is directed to file a Third Amended Complaint in conformity with the instant Decision and Order by no later than January 11, 2019. Defendants shall file an Answer to the Third Amended Complaint by not later than January 25, 2019. The Clerk of Court is directed to terminate Nurse Audrey C. Sykes, Assistant Commissioner Mike Rasmus, and John Does Nos. 1 through 10 as defendants in this matter. SO ORDERED. All Citations Not Reported in Fed. Supp., 2018 WL 6832085 Footnotes 1 Plaintiff initially commenced this action in the United States District Court for the Northern District of New York; the matter was transferred to this Court pursuant to 28 U.S.C. § 1406(a) on August 29, 2013. (Dkt. 6). 2 Defendants argue that Dr. Martins' declaration should be disregarded because Plaintiff did not identify her as an expert witness or provide an expert report. (Dkt. 99-2 at 3-4). Because the Court concludes that Dr. Martins' declaration is insufficient to establish deliberate indifference by Nurse Sykes, it does not reach this argument. 3 Defendants argue in the alternative that Nurse Sykes is entitled to qualified immunity. (Dkt. 88-7 at 14-16). Because the Court finds that Plaintiff has failed to adduce evidence sufficient to maintain a claim against Nurse Sykes, it need not and does not consider this alternative argument. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 101 of 300
Este-Green v. Astrue, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2009 WL 2473509 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Donna ESTE–GREEN, Plaintiff, v. Michael J. ASTRUE, Comm'r of Social Security, Defendant. No. 5:09–CV–0722 (GTS/GHL). | Aug. 7, 2009. West KeySummary 1 Social Security Exhaustion of other remedies Representative for a social security payee failed to exhaust her administrative remedies before filing her claim since there was no final decision after a hearing. The Social Security Administration (SSA) garnished the representative's wages after attempting to work out a repayment plan since the representative was overpaid on behalf of the payee. The representative contacted the SSA to complain about the garnishment and shortly thereafter, the representative filed the action with the Small Claims Court, without having a hearing or final order from the Commissioner of Social Security. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). 29 Cases that cite this headnote Attorneys and Law Firms Donna Este–Green, Hempstead, NY, pro se. Hon. Andrew T. Baxter, United States Attorney for the Northern District of New York, William H. Pease, Esq., Assistant U.S. Attorney, of Counsel, Syracuse, NY. DECISION and ORDER Hon. GLENN T. SUDDABY, District Judge. *1 Currently before the Court, in this pro se action filed by Donna Este–Green (“Plaintiff”) to recover funds allegedly owed to her by the Social Security Administration, is a motion by Michael J. Astrue, Commissioner of Social Security (“Defendant”) to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction due to Plaintiff's failure to exhaust her administrative remedies before filing suit. (Dkt. No. 3.) Plaintiff has not opposed the motion. For the reasons set forth below, Defendant's motion is granted, and Plaintiff's Complaint is dismissed. I. BACKGROUND A. Procedural History On or around May 27, 2009, Plaintiff brought this action in Small Claims Court, City of Ithaca, County of Tompkins (“Small Claims Court”), naming the Social Security Administration (“SSA”) as Defendant. (Dkt. No. 1, Part 3.) Liberally construed, Plaintiff's Complaint alleges that the SSA wrongfully garnished her wages in the amount of five hundred seventy-one dollars ($571.00). (Id.) On June 24, 2009, the United States Attorney's Office for the Northern District of New York removed this case from the Small Claims Court, pursuant to the exclusive original jurisdiction of the District Court under 42 U.S.C. §§ 405(g)-(h) and 1383(c)(3), “because Plaintiff's claim appeared to relate to the payment of Social Security benefits to her as representative payee for the account of Albertina King.” (Dkt. No. 3.) B. Relevant Facts In 1999, Plaintiff had been acting as representative payee for Albertina King, who had been receiving Social Security benefits under Title II of the Act. (Dkt. No. 3.) In October 1999, the SSA issued an overpayment to Plaintiff on Albertina King's account. (Id.) In March 2001, the SSA and Plaintiff arranged a repayment plan pursuant to which Plaintiff agreed to repay the amount due the SSA in fifty-dollar installments beginning on April 15, 2001. (Id.) In October 2007, the SSA sent a letter to Plaintiff, in which the SSA stated the following: (1) Plaintiff had been overpaid as representative payee; (2) Plaintiff had the right to question the decision about her overpayment and to ask that the SSA not recover Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 102 of 300
Este-Green v. Astrue, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 the overpayment; (3) the SSA's past attempts to recover this overpayment had not been successful; (4) there are actions that the SSA can take to recover the money, including wage garnishment; (5) Plaintiff could prevent the wage garnishment by taking certain steps within sixty days of the letter, including repaying the debt, agreeing to a definite repayment plan and repaying the debt according to that plan, asking the SSA to review the finding that she owed the amount stated and that the SSA had the right to collect it, asking the SSA to waive collection of the overpayment, or asking the SSA to review its plan to collect up to fifteen percent of her disposable pay. (Id.) In addition, the letter informed Plaintiff of how she could repay the SSA. (Id.) *2 Plaintiff returned this letter to the SSA, stating that the overpayment was not her fault. (Id.) Plaintiff indicated that she could not afford the amount owed, and that the money that she received was used for the payee's burial. (Id.) In March, 2008, Plaintiff spoke with a supervisor of the SSA by telephone and negotiated a repayment plan agreement for installments of twenty dollars ($20). (Id.) On April 29, 2008, the SSA sent Plaintiff a billing statement indicating her debt of five hundred seventy-one dollars ($571), and that a minimum payment of twenty dollars ($20) must reach the SSA by May 15, 2008. (Id.) On May 6, 2008, documentation issued in connection with the administrative garnishment of Plaintiff's wages was returned to the SSA from Plaintiff's employer, stating that Plaintiff was no longer employed there. (Id.) On April 17, 2009, the SSA issued an order to Plaintiff's employer to garnish her wages. (Id.) Plaintiff's employer completed this order and returned it to the SSA. (Id.) On May 21, 2009, Plaintiff contacted the SSA to complain about the garnishment. (Id.) Shortly thereafter, Plaintiff filed this action with the Small Claims Court, and the Complaint was mailed to the SSA on May 27, 2009. II. APPLICABLE LEGAL STANDARDS A. Standard Governing Motions to Dismiss for Lack of Subject Matter Jurisdiction “A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) (citing Fed.R.Civ.P. 12[b][1] ). With regard to a challenge to a determination by the Social Security Administration, “[a]ny individual may seek judicial review under 42 U.S.C. § 405(g) ‘after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy.” Diagnostic Cardioline Monitoring of New York, Inc. v. Leavitt, 171 F. App'x. 374, 375 (2d Cir. March 17, 2006) (citing 42 U.S.C. § 405[g] ). “This final-decision-after-a-hearing requirement is critical to the federal court's grant of subject matter jurisdiction over these claims.” Leavitt, 171 F. App'x. at 375 (citing Weinberger v. Salfi, 422 U.S. 749, 763–64 [1975] ). “In the absence of a final decision after a hearing, the federal court lacks subject matter jurisdiction to entertain the claim, and it must be dismissed.” Id. (citation omitted). B. Standard Governing Unopposed Motions “Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as required by this Rule shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause be shown.” N.D.N.Y. L.R. 7.1(b)(3). Defendant's motion to dismiss was properly filed, and Plaintiff has failed to oppose them. Therefore, the Court must determine whether Defendant has met her burden to “demonstrate entitlement to the relief requested” under Local Rule 7.1(b)(3). 1 An inquiry into whether a movant has met its “burden to demonstrate entitlement” to dismissal under Local Rule 7.1(b)(3) is a more limited endeavor than a review of a contested motion. Specifically, under such an analysis, the movant's burden has appropriately been characterized as “modest.” 2 This is because, as a practical matter, the burden requires only that the movant present an argument that is “facially meritorious.” 3 III. ANALYSIS *3 After carefully considering the file in this action, including Defendant's motion to dismiss and Plaintiff's Complaint, the Court finds that Defendant has met his lightened burden on his unopposed motion: he has demonstrated entitlement to the relief requested by presenting an argument that is facially meritorious. Even if the Court were to subject Defendant's motion to the more rigorous scrutiny appropriate for contested motions, the Court would find that Defendant has met his burden: Plaintiff failed to exhaust her administrative remedies prior to commencing this action. 4 As a result, the Court lacks subject matter jurisdiction over Plaintiff's claims, and her Complaint is dismissed. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 103 of 300
Este-Green v. Astrue, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 ACCORDINGLY, it is ORDERED that Plaintiff's Complaint is DISMISSED. The clerk is directed to enter judgment and close the case. All Citations Not Reported in F.Supp.2d, 2009 WL 2473509 Footnotes 1 See also Fed.R.Civ.P. 7(b)(1) (requiring motions to, inter alia, “state with particularity the grounds therefor”). 2 See, e.g., Ciaprazi v. Goord, 02–CV0915, 2005 WL 3531464, at *8 (N.D.N.Y. Dec.22, 2005) (Sharpe, J.; Peebles, M.J.) (characterizing defendants' threshold burden on a motion for summary judgment as “modest”) [citing Celotex Corp. v. Catrett, 477 U.S. 317, 323–324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ]; accord, Saunders v. Ricks, 03–CV–0598, 2006 WL 3051792, at *9 & n. 60 (N.D.N.Y. Oct.18, 2006) (Hurd, J., adopting Report–Recommendation of Lowe, M.J.), Smith v. Woods, 03–CV–0480, 2006 WL 1133247, at *17 & n. 109 (N.D.N.Y. Apr.24, 2006) (Hurd, J., adopting Report–Recommendation of Lowe, M.J.); see also Race Safe Sys. v. Indy Racing League, 251 F.Supp.2d 1106, 1109–1110 (N.D.N.Y.2003) (Munson, J.) (reviewing merely whether record contradicted defendant's arguments, and whether record supported plaintiff's claims, in deciding unopposed motion to dismiss, under Local Rule 7.1[b][3] ); Wilmer v. Torian, 96–CV–1269, 1997 U.S. Dist. LEXIS 16345, at *2 (N.D.N.Y. Aug. 29, 1997) (Hurd, M.J.) (applying prior version of Rule 7.1[b][3], but recommending dismissal because of plaintiff's failure to respond to motion to dismiss and the reasons set forth in defendants' motion papers), adopted by 1997 U.S. Dist. LEXIS 16340, at *2 (N .D.N.Y. Oct. 14, 1997) (Pooler, J.); accord, Carter v. Superintendent Montello, 95–CV–989, 1996 U.S. Dist. LEXIS 15072, at *3 (N.D.N.Y. Aug. 27, 1996) (Hurd, M.J.), adopted by 983 F.Supp. 595 (N.D.N.Y.1996) (Pooler, J.). 3 See, e.g., Hernandez v. Nash, 00–CV–1564, 2003 U.S. Dist. LEXIS 16258, at *7–8, 2003 WL 22143709(N.D.N.Y. Sept. 10, 2003) (Sharpe, M.J.) (before a motion to dismiss may be granted under Local Rule 7.1[b] [3], “the court must review the motion to determine whether it is facially meritorious” ) [emphasis added; citations omitted]; accord, Topliff v. Wal–Mart Stores East LP, 04–CV–0297, 2007 U.S. Dist. LEXIS 20533, at *28 & n. 43, 2007 WL 911891 (N.D.N.Y. March 22, 2007) (Lowe, M.J.); Hynes v. Kirkpatrick, 05– CV–0380, 2007 U.S. Dist. LEXIS 24356, at *5–6 & n. 2 (N.D.N.Y. March 21, 2007) (Lowe, M.J.); Sledge v. Kooi, 04–CV–1311, 2007 U.S. Dist. LEXIS 26583, at *28–29 & n. 40, 2007 WL 951447 (N.D.N.Y. Feb. 12, 2007) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 22458 (N.D.N.Y. March 28, 2007) (McAvoy, J.); Kele v. Pelkey, 03–CV–0170, 2006 U.S. Dist. LEXIS 95065, at *5 & n. 2, 2006 WL 3940592 (N.D.N.Y. Dec. 19, 2006) (Lowe, M.J.), adopted by 2007 U.S. Dist. LEXIS 4336 (N.D.N.Y. Jan. 22, 2007) (Kahn, J.). 4 As noted by Defendant in his motion to dismiss, because Plaintiff failed to follow the required SSA regulations before bringing this action, there is no final decision for the Court to review under 42 U.S.C. § 405(g). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 104 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2021 WL 4392485 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Llewellyn Sinclair GEORGE, Plaintiff, v. COUNTY OF WESTCHESTER, et al., Defendants. No. 20-CV-1723 (KMK) | Signed 09/24/2021 Attorneys and Law Firms Llewellyn Sinclair George, White Plains, NY, Pro se Plaintiff. Jordan Silver, Esq., Westchester County Attorney, White Plains, NY, for Defendants. OPINION & ORDER KENNETH M. KARAS, District Judge: *1 Plaintiff Llewellyn Sinclair George (“Plaintiff”), proceeding pro se, brings this Action pursuant to 42 U.S.C. § 1983 against the County of Westchester (the “County”), Assistant Warden La Fonda Spaulding (“Spaulding”), Assistant Warden Eric Middleton (“Middleton”), Sergeant Daniel Lopez (“Lopez”), Sergeant Matthew Kitt (“Kitt”), Captain Andre Mabra (“Mabra”), Captain Christopher Roberts (“Roberts”), and Captain Natasha Vanlierop (“Vanlierop”; collectively, “Defendants”), alleging that Defendants violated his rights under the First, Eighth, and Fourteenth Amendments to the U.S. Constitution. (Compl. 2– 6 (Dkt. No. 2); Ord. of Serv. 1 (Dkt. No. 9); Defs.' Mem. of Law in Supp. of Mot. (“Defs.' Mem.”) 1 (Dkt. No. 30).) 1 Before the Court is Defendants' Motion To Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (the “Motion”). (See Defs.' Not. of Mot. (Dkt. No. 28).) For the reasons that follow, Defendants' Motion is granted in part and denied in part. I. Background A. Factual Background The alleged facts, which are accepted as true for purposes of resolving this Motion, are as follows. On April 4, 2019, while incarcerated at the Westchester County Jail, Plaintiff approached the desk of Vanlierop, who was conducting a tour of the “2 southwest housing unit” in her capacity as a “sector supervisor.” (Compl. 6.) 2 Plaintiff tried to hand Vanlierop a grievance (the “First Grievance”), but Vanlierop “glanced” at the grievance, “turned away,” and stated, “you know I don't do grievances.” (Id.) Later that day, Lopez was touring the upper tier of the same housing unit when Plaintiff attempted to hand him the same grievance. (Id. at 6.) Lopez read the grievance, handed it back to Plaintiff, and said, “I'm not getting into the middle of this mess.” (Id. at 7.) Five days later, on the morning of April 9, 2019, Plaintiff's cell was being searched by two male officers when Vanlierop entered the cell and “confiscated” a separate grievance Plaintiff had prepared (the “Second Grievance”) regarding Vanlierop's refusal to accept the First Grievance. (See id. at 7, 10.) Shortly thereafter, Vanlierop issued a fabricated misbehavior report against Plaintiff in retaliation for the Second Grievance. (See id.) 3 *2 Around 11:30 A.M. on the following day (April 10), Mabra and Kitt stopped by Plaintiff's cell door with the housing unit officer. (Id. at 7.) Mabra ordered the housing unit officer to open Plaintiff's door, which she did. (Id.) While Kitt and the housing unit officer stood outside Plaintiff's cell and “act[ed] as lookouts,” Mabra entered Plaintiff's cell and “inquire[d] about” Plaintiff's grievance against Vanlierop. (Id. at 7, 9.) Before Plaintiff could respond, Mabra, using a “stiff open palm,” “shoved” Plaintiff against his cell wall and “demanded that [P]laintiff retract the contents of [his] grievance.” (Id. at 9.) Plaintiff told Mabra “to go to hell.” (Id.) Mabra, while exiting Plaintiff's cell, said, “I'm going to make your accommodations here a little more lengthy, your ass won't be making it home.” (Id.) 4 After Vanlierop had issued the fabricated misbehavior report against Plaintiff, Defendant Roberts conducted a disciplinary hearing. (Id. at 10.) At the hearing, Roberts denied Plaintiff's “repeated[ ] request[s]” to call witnesses and present audio and video evidence.” (Id.) Before the hearing had begun, Roberts stated that he had received several comments from the “warden's office” indicating “that they were pissed off about [Plaintiff's] treatment of Defendant Vanlierop.” (Id.) Plaintiff alleges that, contrary to Roberts' written disposition, he did not plead guilty to any of the charges. (Id. at 11.) He further alleges that Roberts' handling of the hearing was “improperly influenced by the warden's office.” (Id.) At the conclusion of the hearing, Roberts imposed a penalty of “several days of Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 105 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 cell confinement and loss of good time.” (Id. at 10.) Plaintiff subsequently appealed the hearing disposition to Spaulding and Middleton. (Id. at 11.) He alleges that the outcome of these appeals “[was] improper and unjust.” (Id.) Plaintiff alleges that as a result of Defendants' actions, specifically their “constant threats and taunting,” he suffered “mental anguish and psychological issues,” as well as a “loss of sleep.” (Id. at 8.) Plaintiff “was repeatedly seen” by the Office of Mental Health at the Westchester County Jail and was prescribed medication—Plaintiff does not identify which one(s)—“to cope with the trauma caused by the [D]efendants.” (Id.) He seeks a “permanent court order” requiring administrators at the Westchester County Department of Correction “to record all future disciplinary hearings by audio/video.” (Id.) He also seeks $100,000 in compensatory damages and $60,000 in punitive damages. (Id.) B. Procedural History Plaintiff filed his Complaint on February 26, 2020. (Dkt. Nos. 1–2.) On April 8, 2020, the Court granted Plaintiff leave to proceed in forma pauperis. (Dkt. No. 6.) On April 21, 2020, the Court dismissed Plaintiff's claims against the Westchester County Department of Correction and directed the Clerk of Court to add Vanlierop and the County as Defendants. (Dkt. No. 9.) 5 On August 10, 2020, Defendants filed a pre-motion letter outlining the grounds for their proposed motion to dismiss. (Dkt. No. 21.) Having received no response from Plaintiff, the Court adopted a briefing schedule for the Motion on August 25, 2020. (Dkt. No. 22.) Defendants filed the instant Motion and supporting papers on October 9, 2020. (See Not. of Mot.; Decl. of Jordan L. Silver, Esq., in Supp. of Mot. (Dkt. No. 29); Defs.' Mem.) Plaintiff failed to oppose the Motion, (see Dkt. No. 32), and on November 24, 2020, the Court deemed the Motion fully submitted, (Dkt. No. 33). II. Discussion A. Standard of Review *3 The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiff's obligation to provide the ‘grounds’ of his [or her] ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and citation omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and quotation marks omitted). Rather, a complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his] claims across the line from conceivable to plausible, the[ ] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged —but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ ” (alteration in original) (citation omitted) (quoting FED. R. CIV. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”). “[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam), and “draw[ ] all reasonable inferences in favor of the plaintiff,” Daniel v. T&M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317 (S.D.N.Y. 2016) (same). However, when the complaint is from a pro se plaintiff, the Court may consider “materials outside the complaint to the extent that they are consistent with the allegations in the complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013) (quotation marks omitted), Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 106 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 including “documents that a pro se litigant attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted), statements by the plaintiff “submitted in response to [a] defendant['s] request for a pre-motion conference,” Jones v. Fed. Bureau of Prisons, No. 11-CV-4733, 2013 WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013), “documents either in [the] plaintiff['s] possession or of which [the] plaintiff[ ] had knowledge and relied on in bringing suit,” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (quotation marks omitted), and “his opposition memorandum,” Gadson v. Goord, No. 96-CV-7544, 1997 WL 714878, at *1 n.2 (S.D.N.Y. Nov. 17, 1997). Where, as here, a plaintiff proceeds pro se, the court must “construe[ ] [his] [complaint] liberally and interpret[ ] [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (quotation marks omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a pro se party from compliance with relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding procedural rules and to comply with them.” (citation and italics omitted)). B. Analysis Although Plaintiff does not identify the precise nature of his claims under the First, Eighth, and Fourteenth Amendments, the Court interprets the Complaint to raise eight distinct claims. Specifically, the Complaint claims (i) that Vanlierop and Lopez improperly refused to accept Plaintiff's First Grievance (the “Grievance Claim”), (see Compl. 6–7); (ii) that Vanlierop retaliated against Plaintiff in response to the Second Grievance by confiscating this grievance and filing a false misbehavior report (the “Vanlierop Retaliation Claim”), (see id. at 7, 10); (iii) that Mabra also retaliated against Plaintiff in response to the Second Grievance by entering Plaintiff's cell, shoving him against a wall, and demanding that he retract the contents of the Second Grievance (the “Mabra Retaliation Claim” and, together with the Vanlierop Retaliation Claim, the “Retaliation Claims”), (see id. at 7, 9); (iv) that Mabra used excessive force when demanding that Plaintiff retract the contents of the Second Grievance (the “Excessive Force Claim”), (see id. at 9); (v) that Kitt failed to intervene when Mabra was assaulting Plaintiff (the “Failure to Intervene Claim”), (see id. at 7, 9); (vi) that Roberts, by denying Plaintiff the opportunity to call witnesses and present audio and video evidence at his disciplinary hearing, violated Plaintiff's procedural due process rights (the “Roberts Procedural Due Process Claim”), (see id. at 10–11); (vii) that Spaulding and Middleton, by affirming Roberts' decision, also violated Plaintiff's procedural due process rights (the “Spaulding/Middleton Procedural Due Process Claim” and, together with the “Roberts Procedural Due Process Claim,” the “Procedural Due Process Claims”), (see id. at 11); and (viii) that the County should be liable for the foregoing violations (the “Monell Claim”). The Court will address these claims in order. 1. The Grievance Claim *4 As discussed, Plaintiff alleges that Vanlierop and Lopez refused to accept the First Grievance. (Id. at 6–7.) To the extent Plaintiff asserts a discrete claim based on these allegations, the Court must dismiss the claim. “It is well-established that inmates do not have a protected liberty interest in the processing of their prison grievances.” Crichlow v. Fischer, No. 15-CV-6252, 2017 WL 920753, at *7 (W.D.N.Y. Mar. 7, 2017); see also Corley v. City of New York, No. 14-CV-3202, 2017 WL 4357662, at *7 (S.D.N.Y. Sept. 28, 2017) (“[The] [p]laintiff did not have a liberty interest to access the [prison's] grievance program that would provide a basis for a constitutional due process claim here.”); Nji v. Heath, No. 13-CV-200, 2013 WL 6250298, at *6 (S.D.N.Y. Dec. 2, 2013) (“[I]nmate grievance programs created by state law are not required by the Constitution and consequently[,] allegations that prison officials violated those procedures do[ ] not give rise to a cognizable § 1983 claim.” (citation omitted)); Mimms v. Carr, No. 09- CV-5740, 2011 WL 2360059, at *10 (E.D.N.Y. June 9, 2011) (“It is well-established that prison grievance procedures do not create a due-process-protected liberty interest.”), aff'd, 548 F. App'x 29 (2d Cir. 2013); Torres v. Mazzuca, 246 F. Supp. 2d 334, 342 (S.D.N.Y. 2003) (“Prison grievance procedures do not confer any substantive right upon an inmate requiring the procedural protections envisioned by the Fourteenth Amendment.”). “Rather, in the event that prison officials ignore a grievance that raises constitutional claims, the proper avenue to seek relief is ... directly petitioning the government for redress of his claims.” Harris v. Westchester Cnty. Dep't of Corr., No. 06-CV-2011, 2008 WL 953616, at *5 (S.D.N.Y. Apr. 3, 2008) (collecting cases). Consequently, “courts regularly dismiss claims brought to Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 107 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 remedy alleged violations of inmate grievance procedures.” Martinez v. Schriro, No. 14-CV-3965, 2017 WL 87049, at *3 (S.D.N.Y. Jan. 9, 2017) (alteration omitted). Accordingly, any due process claim against Vanlierop and Lopez based on their purported interference with the grievance process is dismissed. 2. The Retaliation Claims “Prisoners have a constitutional right to petition the government, and it is a violation of § 1983 for prison officials to retaliate against prisoners for the exercise of that right.” Perkins v. Perez, No. 17-CV-1341, 2019 WL 1244495, at *13 (S.D.N.Y. Mar. 18, 2019) (citation omitted). To state a First Amendment claim of retaliation, an inmate must allege “(1) that the speech or conduct at issue was protected, (2) that the defendant took adverse action against the [inmate], and (3) that there was a causal connection between the protected conduct and the adverse action.” Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014) (citation and alteration omitted). An adverse action is any “retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights.” Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003) (quotation marks omitted). In determining whether a prison official's conduct constitutes adverse action, “the court's inquiry must be tailored to the different circumstances in which retaliation claims arise, bearing in mind that prisoners may be required to tolerate more than average citizens.” Id. (quotation marks and alterations omitted). “[B]ecause virtually any adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be characterized as a constitutionally proscribed retaliatory act,” the Second Circuit has instructed that district courts must “approach prisoner retaliation claims with skepticism and particular care.” Dolan v. Connolly, 794 F.3d 290, 295 (2d Cir. 2015) (quotation marks omitted); see also Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (“Retaliation claims by prisoners are prone to abuse since prisoners can claim retaliation for every decision they dislike.” (quotation marks omitted)). Accordingly, First Amendment retaliation claims must be “supported by specific and detailed factual allegations” and may not be stated “in wholly conclusory terms.” Dolan, 794 F.3d at 295 (citation omitted). *5 As noted, Plaintiff alleges that Vanlierop and Mabra both retaliated against him in response to the Second Grievance —Vanlierop by confiscating the grievance and filing a false misbehavior report, (see Compl. 7, 10), and Mabra by entering Plaintiff's cell, shoving him against a wall, and demanding a retraction, (id. at 7, 9). The Court will evaluate each claim separately under the three-part test set out in Holland. a. The Vanlierop Retaliation Claim With respect to the first prong of the Holland test, the Complaint plausibly alleges that Vanlierop's actions against Plaintiff came in response to a form of protected conduct —namely, Plaintiff's preparation of the Second Grievance. “It is well-established that inmates' filing of grievances is a constitutionally protected exercise of their right under the First Amendment to petition the government for the redress of grievances.” Mateo v. Bristow, No. 12-CV-5052, 2013 WL 3863865, at *4 (S.D.N.Y. July 16, 2013) (citing Graham, 89 F.3d at 80); see also Terry v. Hulse, No. 16-CV-252, 2018 WL 4682784, at *10 (S.D.N.Y. Sept. 28, 2018) (same); Roseboro v. Gillespie, 791 F. Supp. 2d 353, 367 & n.21 (S.D.N.Y. 2011) (same; collecting cases). Thus, Plaintiff's allegations with respect to Vanlierop are sufficient to satisfy the first prong of the Holland test. With respect to Holland’s second prong, Plaintiff alleges two distinct forms of possibly adverse action by Vanlierop —(1) her confiscation of the Second Grievance and (2) her filing of a false misbehavior report. (See Compl. 7, 10.) Although inmates have no constitutional right to be free from a cell search, including retaliatory searches, see, e.g., Joseph v. Annucci, No. 18-CV-7197, 2020 WL 409744, at *5 (S.D.N.Y. Jan. 23, 2020) (stating that inmates have “no constitutional right to be free from cell searches of any kind, including retaliatory cell searches” (citation omitted)), they may nevertheless “assert a retaliation claim for retaliatory conduct in connection with a cell search,” Hill v. Laird, No. 06-CV-126, 2014 WL 1315226, at *8 (E.D.N.Y. Mar. 31, 2014), including a prison official's seizure of legal documents or administrative grievances, Smith v. City of New York, No. 03-CV-7576, 2005 WL 1026551, at *3 (S.D.N.Y. May 3, 2005) (holding on summary judgment that the defendants' “destruction of [the plaintiff's] legal papers” constituted “an adverse action substantial enough to satisfy the second prong of the retaliation test”). At this early stage of the case, Plaintiff's allegation that Vanlierop seized the Second Grievance is sufficient to state an adverse action. See Yunus v. Jones, No. 16-CV-1282, 2017 WL 9511176, at *9 (N.D.N.Y. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 108 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 Aug. 23, 2017) (concluding that “the allegation that [the] defendant ... confiscated [the] plaintiff's personal property”— including prison grievances—“in retaliation for the exercise of his First Amendment grievance rights [was] sufficient to withstand a motion to dismiss”), report and recommendation adopted, 2017 WL 5956762 (N.D.N.Y. Dec. 1, 2017); Guillory v. Haywood, No. 13-CV-1564, 2015 WL 268933, at *21 (N.D.N.Y. Jan. 21, 2015) (order adopting report & recommendation) (holding that the plaintiff adequately stated a claim for retaliation where he alleged that his legal documents were confiscated shortly after complaints over his treatment at the prison facility); Gomez v. Graham, No. 14-CV-201, 2014 WL 5475348, at *5 (N.D.N.Y. Oct. 29, 2014) (concluding that “[a]t th[e] early juncture of” a motion to dismiss, allegations that the plaintiff's legal papers were confiscated were sufficient to state a retaliation claim). *6 Similarly, although “a prison inmate has no general constitutional right to be free from being falsely accused in a misbehavior report,” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); see also Thomas v. Calero, 824 F. Supp. 2d 488, 499 (S.D.N.Y. 2011) (noting that “[t]he Second Circuit has long held ... that a prison inmate has no constitutional right to be free from being falsely accused in a misbehavior report”), there is an exception where the inmate can “show either (1) that he was disciplined without adequate due process as a result of the report; or (2) that the report was issued in retaliation for exercising a constitutionally protected right,” Willey v. Kirkpatrick, 801 F.3d 51, 63 (2d Cir. 2015) (quotation marks omitted); see also Cook v. Quattrocchi, No. 19-CV-11659, 2020 WL 564082, at *2 (S.D.N.Y. Feb. 5, 2020) (same). Here, Vanlierop allegedly issued the false misbehavior report in retaliation for Plaintiff's participation in constitutionally protected conduct—namely, his preparation of the Second Grievance—and thus, the Complaint sufficiently alleges an adverse action based on Vanlierop's issuance of the misbehavior report. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (concluding that the plaintiff sufficiently alleged an adverse action based on the defendants' filing of false misbehavior reports in response to the plaintiff's prior grievance submissions); Arriaga v. Gage, No. 16-CV-1628, 2019 WL 2053990, at *6 (S.D.N.Y. May 9, 2019) (concluding on a motion to dismiss that allegedly false misbehavior reports issued in retaliation for the plaintiff's grievances “qualif[ied] as adverse actions”); Mateo v. Fischer, 682 F. Supp. 2d 423, 434 (S.D.N.Y. 2010) (concluding that the defendants' alleged retaliation—“[f]iling a false misbehavior report about [the plaintiff]” in response to the plaintiff's submission of a grievance—“would deter a similarly situated person of ordinary firmness from exercising his First Amendment rights,” and therefore “qualifie[d] as an adverse action”). Finally, in considering whether “there was a causal connection between the protected conduct and the adverse action” under Holland's third prong, see 758 F.3d at 225, “a court may infer an improper or retaliatory motive in the adverse action from: (1) the temporal proximity of the filing to the grievance and the disciplinary action; (2) the inmate's prior good disciplinary record; (3) vindication at a hearing on the matter; and (4) statements by the defendant regarding his motive for disciplining the plaintiff,” Thomas v. DeCastro, No. 14-CV-6409, 2019 WL 1428365, at *9 (S.D.N.Y. Mar. 29, 2019) (citation omitted). Here, Plaintiff alleges that Vanlierop seized the Second Grievance and issued the false misbehavior report on or around April 9, (see Compl. 7, 10)—only five days after the incident that was the subject of the Second Grievance, (see id. at 6, 10). 6 The Second Circuit has “held that temporal proximity between protected conduct and an adverse action constitutes circumstantial evidence of retaliation.” Harnage v. Brighthaupt, 168 F. Supp. 3d 400, 413 (D. Conn. 2016) (quoting Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013)), aff'd, 720 F. App'x 79 (2d Cir. 2018); see also Washington v. Afify, 681 F. App'x 43, 46 (2d Cir. 2017) (summary order) (same); Mateo, 2013 WL 3863865, at *6 (finding a “plausible inference” that the defendants issued a misbehavior report in retaliation for the plaintiff's past grievances based in part on the fact that the report was issued just one day after the plaintiff had a confrontation with the defendants). “Although temporal proximity between constitutionally protected activity and potentially retaliatory activity generally will not, on its own, allow a plaintiff to withstand a motion to dismiss,” Salahuddin v. Mead, No. 95-CV-8581, 2002 WL 1968329, at *6 n.6 (S.D.N.Y. Aug. 26, 2002), courts may “exercise [their] judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases,” Quezada v. Roy, No. 14-CV-4056, 2017 WL 6887793, at *10 (S.D.N.Y. Dec. 14, 2017) (quotation marks omitted). Though Plaintiff appears to rely solely on the temporal proximity between his protected conduct and Vanlierop's alleged retaliation, some courts in this District have found that, at the pleadings stage of a case, such close temporal proximity is sufficient to establish a causal connection, particularly where, as here, the defendant appears to retaliate in response to grievance of which he (or she) was the subject. See Vogelfang v. Capra, 889 F. Supp. 2d 489, 518 (S.D.N.Y. 2012) (concluding, for purposes of a motion to dismiss, that where the defendant Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 109 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 filed a false misbehavior report against the plaintiff three days after the plaintiff had filed a grievance against that defendant, “[t]he temporal proximity of th[o]se two events, as well as the common identity between the subject of [the plaintiff's] grievance and the author of the [misbehavior report], plausibly suggest[ed]” a causal connection); Mateo, 682 F. Supp. 2d at 435 (concluding that, on a motion to dismiss, the plaintiff's allegation that the defendant filed a false misbehavior report one day after the plaintiff filed a sexual harassment grievance against the defendant was sufficient to plead the causation element of his retaliation claim). 7 Consistent with these cases, the Court concludes that Plaintiff has adequately alleged the causation element of his retaliation claim. *7 Accordingly, the Vanlierop Retaliation Claim survives the instant Motion. b. The Mabra Retaliation Claim Mabra allegedly retaliated against Plaintiff in response to the Second Grievance by entering his cell, shoving him against a wall, demanding that Plaintiff retract the contents of the Second Grievance, and then threatening Plaintiff that he would “make [Plaintiff's] accommodations ... a little more lengthy,” such that Plaintiff “[wouldn't] be making it home.” (Compl. 7, 9.) “As a general matter, it is difficult to establish one defendant's retaliation for complaints against another defendant,” Kotler v. Boley, No. 17-CV-239, 2018 WL 4682026, at *4 n.2 (S.D.N.Y. Sept. 28, 2018) (collecting cases)—in this case, Mabra's retaliation for complaints against Vanlierop. But courts have recognized an exception where, for example, the defendant made clear that he or she was retaliating on behalf of a colleague. See, e.g., Headley v. Fisher, No. 06-CV-6331, 2008 WL 1990771, at *18 (S.D.N.Y. May 7, 2008) (finding that the plaintiff adequately alleged a retaliation claim where the defendant hit him and stated, “this is for CO. Simpson,” the defendant against whom the plaintiff had filed a grievance). That is the case here, where Mabra allegedly made clear that he was acting in response to the grievance concerning Vanlierop. (See Compl. 9 (alleging that Mabra entered Plaintiff's cell and “inquire[d] about the grievance that [P]laintiff had written against Defendant Vanlierop” before shoving Plaintiff and demanding that he “retract the contents of the grievance” against Vanlierop).) For reasons discussed with respect to Vanlierop in Part II.B.2.a, supra, the Court concludes that Plaintiff has adequately alleged Holland's first and third elements with respect to Mabra. That is, the Complaint plausibly suggests that Mabra's allegedly retaliatory actions were in response to Plaintiff's exercise of constitutionally protected conduct (his preparation of the Second Grievance), and Mabra's actions occurred on April 10, just one day after Vanlierop seized the Second Grievance, (see Compl. 7), which itself had only been drafted within the past several days, see notes 3 & 6 supra, thereby establishing the necessary causal connection. The only question remaining is whether Mabra's conduct constitutes adverse action so as to satisfy Holland's second prong. Here, there are three discrete actions to consider: (1) Mabra's threat to Plaintiff (“[Y]our ass won't be making it home”); (2) Mabra's demand that Plaintiff “retract the contents of” the Second Grievance; and (3) Mabra's act of shoving Plaintiff against the wall. (See Compl. 9.) With respect to the first action, “verbal threats may qualify as adverse actions” in the prison retaliation context only where they are “sufficiently specific and direct.” White v. Westchester County, No. 18-CV-730, 2018 WL 6726555, at *17 (S.D.N.Y. Dec. 21, 2018) (quotation marks omitted) (collecting cases); see also Terry v. Hulse, No. 16-CV-252, 2018 WL 4682784, at *11 (S.D.N.Y. Sept. 28, 2018) (same); Mateo, 682 F. Supp. 2d at 434 (explaining that “[t]he less direct and specific a threat, the less likely it will deter an inmate from exercising his First Amendment rights”). “Thus, vague intimations of some unspecified harm generally will not rise to the level of adverse action for the purpose of a First Amendment retaliation claim.” Bumpus v. Canfield, 495 F. Supp. 2d 316, 326 (W.D.N.Y. 2007). Here, Mabra's alleged threat is more benign than many threats which courts in the Second Circuit have found insufficient to constitute an adverse action. See Terry, 2018 WL 4682784, at *11 (dismissing a First Amendment retaliation claim because the alleged threat was insufficiently specific and direct even where corrections officers stated that “they were gonna kill” the plaintiff (record citation and alteration omitted)); see also Albritton v. Morris, No. 13-CV-3708, 2016 WL 1267799, at *18 (S.D.N.Y. Mar. 30, 2016) (dismissing First Amendment retaliation claims because a corrections officer's statements to a plaintiff that his “grievances were unlikely to succeed” and that the officer “would handle things ‘his way’ ” were insufficiently specific or direct); Barrington v. New York, 806 F. Supp. 2d 730, 746 (S.D.N.Y. 2011) (granting summary judgment in favor of a defendant who told an inmate that “ ‘me and my boys ... going to get you’ while brandishing a copy of a grievance”); Bilal v. N.Y. State Dep't of Corr., No. 09-CV-8433, 2010 WL 2506988, at *16 (S.D.N.Y. June Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 110 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 21, 2010) (“Neither [the defendant's] comment ... that [the plaintiff] was ‘lucky’ because correction officers ‘usually fuck people up for writing a bunch of bullshit grievances’ nor his ... comment that ‘[y]ou're not the only one who can write. I'm willing to bet you'll break or get broke up,’ was a ‘direct’ or ‘specific’ threat.” (alteration and record citations omitted)), aff'd sub nom., Bilal v. White, 494 F. App'x 143 (2d Cir. 2012); cf. White, 2018 WL 6726555, at *14 (“This allegation constitutes a specific, clear threat made in response to [the] [p]laintiff's prospective grievance against [the] [d]efendant .... [The defendant] threatened physical harm to [the] [p]laintiff, and did so with particularity, by pointing to the inmates who would harm [the] [p]laintiff and explaining why they would harm him at her direction.”). In sum, Plaintiff has failed to allege an adverse action based on Mabra's alleged threat. *8 With respect to Mabra's second action, case law suggests that where a defendant demands that an inmate withdraw a prison grievance, such a demand does not give rise to a retaliation claim unless the demand is accompanied by a sufficiently specific and direct threat. Here, because Mabra's threat was not sufficiently specific or direct, his alleged demand that Plaintiff “retract the contents” of the Second Grievance does not constitute an adverse action. See Rodriguez v. Patchen, No. 13-CV-1086, 2018 WL 2122877, at *9 (W.D.N.Y. Mar. 1, 2018) (concluding on summary judgment that the defendant's alleged “threat[ ] to use physical violence against [the] [p]laintiff unless [he] withdrew his inmate grievance” did not establish a retaliation claim because “physical violence” constituted a vague threat), report and recommendation adopted, 2018 WL 2119768 (W.D.N.Y. May 8, 2018); Bartley v. Collins, No. 95-CV-10161, 2006 WL 1289256, at *6 (S.D.N.Y. May 10, 2006) (concluding on summary judgment that “verbal threats such as ‘we [are] going to get you, you better drop the [law]suit,’ do not rise to the level of adverse action” (footnote omitted)); cf. St. Pierre v. Semple, No. 14-CV-1866, 2015 WL 6872442, at *4 (D. Conn. Nov. 9, 2015) (finding that the plaintiff adequately stated a retaliation claim against a nurse who threatened to continue to stop providing him with his prescribed pain medication unless he withdrew a grievance against her). Thus, Plaintiff cannot state a retaliation claim against Mabra based on Mabra's demand that he retract the Second Grievance. With respect to Mabra's third action, physical assault may, depending on its severity, constitute an adverse action for purposes of a First Amendment retaliation claim. See Flemming v. King, No. 14-CV-316, 2016 WL 5219995, at *5 (N.D.N.Y. June 20, 2016), report and recommendation adopted, 2016 WL 5173282 (N.D.N.Y. Sept. 21, 2016); see also Baskerville v. Blot, 224 F. Supp. 2d 723, 731– 32 (S.D.N.Y. 2002) (holding that a “retaliatory assault” sufficiently described an adverse action for purposes of a retaliation claim). Notably, “the alleged assault need not rise to the level of an Eighth Amendment excessive force violation in order to be considered an adverse action for purposes of First Amendment retaliation analysis.” Flemming, 2016 WL 5219995, at *5. Even in light of this lower standard, however, Mabra's alleged action is still insufficient to constitute an adverse action. The cases in which courts have recognized assault as a form of adverse action have involved markedly more violent conduct than that alleged here. See, e.g., Salgado v. NYS Dep't of Corr. & Cmty. Supervision, No. 13-CV-1108, 2016 WL 6311296, at *3, *8 (W.D.N.Y. Sept. 15, 2016) (concluding that slamming the plaintiff's finger in a cell window and beating him constituted adverse action for purposes of retaliation claim); Baskerville, 224 F. Supp. 2d at 726, 732 (holding that a “retaliatory assault” in which the plaintiff was placed in a chokehold, shoved into the bars of his cell, and choked until he “was on the verge of collapsing” “sufficiently describe[d] adverse conduct that would deter a reasonable inmate from exercising his constitutional rights”). By contrast, courts have found that shoving an inmate or comparable conduct is insufficient to constitute an adverse action. See Flynn v. Ward, No. 15-CV-1028, 2018 WL 3195095, at *9 (N.D.N.Y. June 7, 2018) (observing that “[a]lthough an alleged assault need not rise to the level of an Eighth Amendment excessive force violation in order to be considered an adverse action for purposes of First Amendment retaliation analysis, [the plaintiff's] allegations that [a defendant] ‘push[ed] him around’ ” was “de minimis” and therefore insufficient to constitute adverse action (record citation omitted) (last alteration in original)), report and recommendation adopted, 2018 WL 3193201 (N.D.N.Y. June 28, 2018); Rivera v. Goord, 119 F. Supp. 2d 327, 340 (S.D.N.Y. 2000) (concluding that particular defendants' “alleged acts of retaliation”—“ ‘shov[ing]’ [the plaintiff] while taking him to the [Special Housing Unit (“SHU”)]”—“even if assumed to be true, [were] de minimis ... [and] would not chill a person of ordinary firmness from continuing to engage in First Amendment activity” (italics omitted)); see also, e.g., Myers v. Saxton, No. 20-CV-465, 2021 WL 149062, at *7 (N.D.N.Y. Jan. 15, 2021) (“[I]n this circuit, courts have routinely concluded that the type of physical assault suffered by [the] plaintiff in this case (i.e., having a food tray thrown at him) is de minimis for purposes of a retaliation claim and is not sufficient to satisfy the adverse action element.”); Woodward Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 111 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 v. Afify, No. 14-CV-856, 2018 WL 9875253, at *11 (W.D.N.Y. Sept. 28, 2018) (“[V]iewing the allegations here in the light most favorable to [the] plaintiff, the [c]ourt concludes that a single punch is an insufficient adverse action to meet even the lower standard required in a First Amendment retaliation claim.”), report and recommendation adopted, 2019 WL 5394217 (W.D.N.Y. Oct. 22, 2019). Accordingly, Plaintiff has failed to allege an adverse action taken by Mabra. *9 Because Plaintiff has failed to allege adequately the “adverse action” prong of his retaliation claim against Mabra, the Court dismisses the Mabra Retaliation Claim. 3. The Excessive Force Claim To the extent Plaintiff alleges a distinct excessive force claim against Mabra based on his act of shoving Plaintiff into his cell wall, (see Compl. 9), this claim fails for reasons already discussed: Just as the act of shoving an inmate fails to satisfy the relaxed standard necessary to allege an “adverse action,” it necessarily fails to satisfy the more demanding standard necessary to establish an Eighth Amendment excessive force claim. The Eighth Amendment's guarantee of freedom from “cruel and unusual punishment” encompasses “restraints on prison officials, who may not, for example, use excessive physical force against prisoners.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). “[An] [a]nalysis of cruel and unusual punishment claims requires both objective examination of the conduct's effect and a subjective inquiry into the defendant's motive for the conduct.” Manley v. Grossman, No. 13-CV-1974, 2017 WL 4326541, at *8 (S.D.N.Y. Sept. 27, 2017). The objective element focuses on the harm done “in light of contemporary standards of decency,” Wright v. Goord, 554 F.3d 255, 268 (2d Cir. 2009) (quotation marks omitted), and asks whether “the deprivation alleged is ‘sufficiently serious,’ or ‘harmful enough,’ to reach constitutional dimensions,” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993) (citing Wilson v. Seiter, 501 U.S. 294, 298, 303 (1991)). “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.” Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997) (citation omitted). The subjective element requires a showing that the defendant “had the necessary level of culpability, shown by actions characterized by wantonness' in light of the particular circumstances surrounding the challenged conduct.” Wright, 554 F.3d at 268 (citation omitted). Here, even assuming Plaintiff could satisfy the subjective element of his excessive force claim, the Court finds no basis to conclude that the alleged use of force was “objectively ‘harmful enough’ or ‘sufficiently serious’ ” to violate the Eighth Amendment. Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015) (citation omitted). Courts in the Second Circuit have found that comparable uses of force—where a corrections officer forcefully shoves or pushes an inmate— are insufficient to satisfy the objective prong of an excessive force claim. See, e.g., Tavares v. City of New York, No. 08-CV-3782, 2011 WL 5877550, at *5–6 (S.D.N.Y. Oct. 17, 2011) (holding that a pat frisk where the plaintiff was “forcefully ‘compressed’ against the wall” was not a violation of the Eighth Amendment and noting that “[c]ourts in this Circuit have routinely found such types of minimal injuries and pain insufficiently serious or harmful to satisfy the objective element of the Eighth Amendment analysis” (citing cases)), report and recommendation adopted, 2011 WL 5877548 (S.D.N.Y. Nov. 23, 2011); James v. Phillips, No. 05-CV-1539, 2008 WL 1700125, at *5 (S.D.N.Y. Apr. 9, 2008) (concluding that a guard's “shov[ing] of an inmate” constituted a de minimis use of force that could not give rise to a viable excessive force claim); Show v. Patterson, 955 F. Supp. 182, 192–93 (S.D.N.Y. 1997) (concluding that the alleged force—“pushing [the plaintiff] against the wall”— was “de minimis and thus not protected by the Eighth Amendment”); Bryan v. Admin. of F.C.I. Otisville, 897 F. Supp. 134, 137 (S.D.N.Y. 1995) (“The Second Circuit has deemed brief confrontations between prisoners and guards such as the pushing incident alleged here insignificant for Eighth Amendment purposes.”). Accordingly, the Court dismisses the Excessive Force Claim. 4. The Failure to Intervene Claim *10 Construed liberally, the Complaint raises a claim for failure to intervene against Kitt. (Compl. 7, 9.) Under the Eighth Amendment, prison officials must “take reasonable measures to guarantee the safety of inmates in their custody.” Hayes v. N.Y. C. Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996). Moreover, “[l]aw enforcement officials, including prison officials, can be held liable under § 1983 for failing to intervene in a situation where another official is violating an inmate's constitutional rights, including the use of excessive force, in their presence.” McRae v. Gentile, No. 14- CV-783, 2015 WL 7292875, at *2 (N.D.N.Y. Oct. 20, 2015), Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 112 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 report and recommendation adopted, 2015 WL 7300540 (N.D.N.Y. Nov. 18, 2015); see also Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) (“It is widely recognized that all law enforcement officials have an affirmative duty to intervene to protect the constitutional rights of citizens from infringement by other law enforcement officers in their presence.” (collecting cases)), reh'g denied, 27 F.3d 29 (2d Cir. 1994). Specifically, “[a]n officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know that excessive force is being used,” provided there was “a realistic opportunity to intervene to prevent the harm from occurring.” Rahman v. Acevedo, No. 08-CV-4368, 2011 WL 6028212, at *8 (S.D.N.Y. Dec. 5, 2011) (alteration and quotation marks omitted). “However, ‘there can be no failure to intervene claim without a primary constitutional violation.’ ” Sanabria v. Tezlof, No. 11-CV-6578, 2016 WL 4371750, at *5 (S.D.N.Y. Aug. 12, 2016) (quoting Forney v. Forney, 96 F. Supp. 3d 7, 13 (E.D.N.Y. 2015)); see also Posner v. City of New York, No. 11- CV-4859, 2014 WL 185880, at *8 (S.D.N.Y. Jan. 16, 2014) (explaining that “[b]ecause [the] [d]efendants [were] entitled to summary judgment on [the] [p]laintiff's primary claims that they violated her constitutional rights, it follow[ed] that they [were] entitled to summary judgment on her failure-to- intervene ... claim[ ] as well”); Matthews v. City of New York, 889 F. Supp. 2d 418, 443–44 (E.D.N.Y. 2012) (observing that a “failure to intervene claim is contingent upon the disposition of the primary claims underlying the failure to intervene claim”). Because Plaintiff failed to state an excessive force claim against Mabra, it necessarily follows that the Failure to Intervene Claim against Kitt—which is premised on Kitt allegedly turning a blind eye while Mabra entered Plaintiff's cell—must also fail. See, e.g., Forney, 96 F. Supp. 3d at 13 (explaining that because “all of [the] [p]laintiff's primary [§] 1983 claims ha[d] been dismissed, [the] [d]efendants' motion to dismiss [the] [p]laintiff's failure to intervene claim” also had to be granted). Accordingly, the Court dismisses the Failure to Intervene Claim. 5. The Procedural Due Process Claims Plaintiff alleges that after Vanlierop issued a false misbehavior report in retaliation for the Second Grievance, “a disciplinary hearing was conducted by Defendant Roberts, during which [P]laintiff's repeat[ed] request[s] ... to present audio and video evidence, as well as to call witnesses[,]” were “denied.” (Compl. 10.) Plaintiff also alleges that Roberts' “handling of the disciplinary hearing was improperly influenced by the warden's office,” which had apparently notified Roberts that it was displeased with Plaintiff's “treatment of Defendant Vanlierop.” (Id. at 10–11.) At the end of the hearing, the punishment imposed by Roberts was “several days of cell confinement and loss of good time.” (Id. at 10.) *11 “To present a due process claim, a plaintiff must establish (1) that he possessed a liberty interest and (2) that the defendant(s) deprived him of that interest as a result of insufficient process.” Ortiz v. McBride, 380 F.3d 649, 654 (2d Cir. 2004) (citation and alteration omitted), cert. denied sub nom., McBride v. Ortiz, 543 U.S. 1187 (2005). The Supreme Court has held that inmates retain due process rights in prison disciplinary proceedings. See Wolff v. McDonnell, 418 U.S. 539, 563–72 (1974) (describing the procedural protections that inmates are to receive when subject to significant disciplinary punishment). With respect to the first requirement, “[p]rison discipline implicates a liberty interest when it ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ” Ortiz, 380 F.3d at 654 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). When evaluating whether an inmate has suffered “atypical and significant hardship,” courts must compare the conditions imposed upon that inmate with the conditions “endured by prisoners in [the] general population, as well as prisoners in administrative and protective confinement, assuming such confinements are imposed in the ordinary course of prison administration.” Welch v. Bartlett, 196 F.3d 389, 393 (2d Cir. 1999). When evaluating the severity of an inmate's hardship, courts should consider both the duration and the conditions of confinement. Dawkins v. Gonyea, 646 F. Supp. 2d 594, 606 (S.D.N.Y. 2009). Regarding the process an inmate is due, a disciplinary hearing comports with due process when an inmate receives “advance written notice of the charges; a fair and impartial hearing officer; a reasonable opportunity to call witnesses and present documentary evidence; and a written statement of the disposition, including supporting facts and reasons for the action taken.” Luna v. Pico, 356 F.3d 481, 487 (2d Cir. 2004). “Prison disciplinary proceedings,” however, “are not part of a criminal prosecution, and the full panoply of rights due a defendant in such proceedings does not apply.” Smith v. Fischer, 803 F.3d 124, 127 (2d Cir. 2015) (quoting Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 113 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 Wolff, 418 U.S. at 556). Ultimately, a guilty finding in an inmate disciplinary hearing only needs to be supported by “some evidence from which the conclusion ... could be deduced.” Superintendent v. Hill, 472 U.S. 445, 455 (1985) (quotation marks omitted). The Second Circuit has explained that “[j]udicial review of this ‘some evidence’ standard is narrowly focused.” Sira v. Morton, 380 F.3d 57, 76 (2d Cir. 2004). Such review “does not require examination of the entire record, independent assessment of the credibility of witnesses, or weighing of the evidence. Instead, the relevant question is whether there is any evidence in the record that could support the conclusion reached by the disciplinary board.” Id. (quoting Hill, 472 U.S. at 455–56). Finally, “the Second Circuit has said that its ‘conception of an impartial decisionmaker is one who, inter alia, does not prejudge the evidence and who cannot say, with ... utter certainty ..., how he would assess evidence he has not yet seen.’ ” Rahman, 2011 WL 6028212, at *7 (quoting Patterson v. Coughlin, 905 F.2d 564, 570 (2d Cir. 1990)) (italics omitted). a. The Roberts Procedural Due Process Claim As noted, Plaintiff alleges that he was sentenced to “several days of cell confinement,” along with “loss of good time.” (Compl. 10.) Based on the latter allegation—but not the former—Plaintiff has adequately alleged a “liberty interest sufficient to trigger due process protections during his administrative hearing.” Davis v. Barrett, 576 F.3d 129, 133 (2d Cir. 2009). However, his vague allegation that Roberts “denied” his “repeat[ed] request[s]” to “present audio and video evidence, as well as to call witnesses,” (Compl. 10), is insufficient to allege a procedural violation by Roberts. *12 The Second Circuit has explained that “[t]he length of disciplinary confinement is one of the guiding factors in applying Sandin’s ‘atypical and significant hardship’ test.” Hanrahan v. Doling, 331 F.3d 93, 97 (2d Cir. 2003). It is not, however, the only relevant factor. “The conditions of confinement are a distinct and equally important consideration in determining whether a confinement in SHU rises to the level of ‘atypical and severe hardship.’ ” Palmer v. Richards, 364 F.3d 60, 64 (2d Cir. 2004) (quotation marks omitted). Accordingly, courts must consider both the conditions of disciplinary confinement and their duration, as “especially harsh conditions endured for a brief interval and somewhat harsh conditions endured for a prolonged interval might both be atypical.” Sealey v. Giltner, 197 F.3d 578, 586 (2d Cir. 1999). Although the Second Circuit has “explicitly avoided a bright line rule that a certain period of SHU confinement automatically fails to implicate due process rights,” it has nevertheless established certain “guidelines for use by district courts in determining whether a prisoner's liberty interest was infringed.” Palmer, 364 F.3d at 64. For example, the Second Circuit has explained that where a plaintiff is confined in SHU for an “intermediate duration” of between 101 and 305 days, “development of a detailed record” regarding the conditions of confinement as compared to “ordinary prison conditions” is required. Id. at 64–65 (quotation marks omitted). Moreover, “although shorter confinements under normal SHU conditions may not implicate a prisoner's liberty interest, [the Second Circuit has] explicitly noted that SHU confinements of fewer than 101 days could constitute atypical and significant hardships if the conditions were more severe than the normal SHU conditions ... or a more fully developed record showed that even relatively brief confinements under normal SHU conditions were, in fact, atypical.” Id. at 65 (citation omitted). “In the absence of a detailed factual record,” the Second Circuit has “affirmed dismissal of due process claims only in cases where the period of time spent in SHU was exceedingly short—less than ... 30 days ... spent in SHU—and there was no indication that the plaintiff endured unusual SHU conditions.” Id. at 66 (collecting cases); see also, e.g., Colon v. Annucci, 344 F. Supp. 3d 612, 633–34 (S.D.N.Y. 2018) (holding that the plaintiff's “30-day keeplock confinement alone [was] insufficient to create a liberty interest triggering due process protections” (collecting cases)); Walker v. Quiros, No. 11- CV-82, 2014 WL 7404550, at *8 (D. Conn. Sept. 30, 2014) (“In the absence of a more detailed factual record, a term of segregated confinement shorter than [30] days generally does not create a constitutional liberty interest.”); Houston v. Cotter, 7 F. Supp. 3d 283, 298 (E.D.N.Y. 2014) (“Absent a detailed factual record, courts typically affirm dismissals of due process claims where the period of time spent in SHU was short—e.g., [30] days—and there was no indication of unusual conditions.” (italics omitted)). Here, Plaintiff alleges merely that he was sentenced to “several days of cell confinement,” along with “loss of good time.” (Compl. 10.) 8 Plaintiff offers no allegations regarding the severity or atypicality of the conditions he experienced in disciplinary confinement. Without such allegations, “several days” in disciplinary confinement is insufficient to trigger a liberty interest in his disciplinary hearing. See Washington v. Fitzpatrick, No. 20-CV-911, 2021 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 114 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 WL 966085, at *9 (S.D.N.Y. Mar. 15, 2021) (holding that the plaintiff's allegation that he was sentenced to 30 days in keeplock confinement, during which he was denied various privileges such as phone calls, television, and commissary access, did “not plausibly plead a liberty interest”); Ruggiero v. Way, No. 19-CV-3631, 2020 WL 5126112, at *9 (S.D.N.Y. Aug. 31, 2020) (holding that where the plaintiff alleged he was confined to SHU for 30 days, without “any allegation that he endured unusual SHU conditions during his confinement,” the plaintiff “ha[d] not pleaded deprivation of a cognizable interest in liberty”); Brown v. Murphy, No. 16-CV-710, 2019 WL 2325777, at *2–3 (S.D.N.Y. May 30, 2019) (holding that the plaintiff's 30-day period in keeplock confinement did not constitute an atypical and significant hardship where the complaint was “devoid of any allegations of the conditions of his keeplock confinement”); Colon, 344 F. Supp. 3d at 633– 34 (dismissing due process claim where the plaintiff alleged that he was sentenced to 30 days in keeplock confinement and failed to “allege any facts suggesting that he was exposed to any conditions of confinement more harsh than typical keeplock”). Accordingly, Plaintiff has failed to allege a liberty interest based on his time in disciplinary confinement. *13 Plaintiff also alleges, however, that he suffered a “loss of good time,” (Compl. 10), and the Disciplinary Hearing Officers Report attached to his Complaint indicates that he did lose a certain number of days of his good-time behavior allowance, (see id. at 18). It is well-established that “the loss of good time credit can implicate a liberty interest.” Jenkins v. Cordero, No. 17-CV-1592, 2018 WL 456311, at *4 (S.D.N.Y. Jan. 17, 2018) (citing Wolff, 418 U.S. at 556–57); see also, e.g., Gulley v. Roach, No. 02-CV-908, 2004 WL 2331922, at *5 (W.D.N.Y. Oct. 15, 2004) (“Loss of good time credits implicates a prisoner's liberty interest.”). Thus, Plaintiff's allegation that he lost good time credits, which is corroborated by the document attached to his Complaint, is sufficient to establish a liberty interest in his disciplinary proceedings. See, e.g., Rivers v. Paige, No. 12-CV-6593, 2014 WL 897094, at *3 (W.D.N.Y. Mar. 6, 2014) (holding that the plaintiff adequately alleged a liberty interest in his disciplinary hearing based on allegation that he had “lost 30 days of good time credit”). But while Plaintiff has adequately alleged a liberty interest in his disciplinary hearing, his allegations regarding procedural deficiencies are too vague and conclusory to establish a procedural due process claim. As noted, Plaintiff alleges merely that Roberts “denied” his “repeat[ed] request[s]” to “present audio and video evidence, as well as to call witnesses.” (Compl. 10.) Courts have held that such vague, conclusory allegations are insufficient to establish the second prong of a procedural due process claim. See McFadden v. Annucci, No. 18-CV-6684, 2021 WL 463829, at *9 (S.D.N.Y. Feb. 9, 2021) (“Simply alleging that he was denied the right to call witnesses, present documents or to ‘confront accusations’ is wholly conclusory and does not state a claim upon which relief can be granted.”); Banks v. Royce, No. 18-CV-4738, 2020 WL 5038590, at *4 (S.D.N.Y. Aug. 26, 2020) (concluding that the plaintiff's allegation—that the defendants “denied [him] [his] procedural due process when they prevented [him] from presenting evidence in the form of witnesses and documents”—was “the type of ‘unadorned, the-defendant- unlawfully-harmed-me’ allegation” that is insufficient to state a claim (citations omitted)); see also Rush v. Canfield, 649 F. App'x 70, 71 (2d Cir. 2016) (summary order) (holding that the plaintiff's “assertion that he was ‘denied the right to call witnesses’ ” was “a bare legal conclusion incapable of surviving a motion to dismiss” (citation omitted)). Likewise, Plaintiff's allegation that Roberts was improperly swayed by the warden's office, (see Compl. 10–11), is merely a “[c]onclusory allegation[ ] of bias,” which “[is] not enough to show that a plaintiff received constitutionally insufficient process,” Banks, 2020 WL 5038590, at *4 (collecting cases); see also Fabricio v. Griffin, No. 16-CV-8731, 2019 WL 1059999, at *9 (S.D.N.Y. Mar. 6, 2019) (holding that the plaintiff's “conclusory allegation[ ]” that the hearing officer was biased failed to state a procedural due process claim). Accordingly, the Court dismisses the Roberts Procedural Due Process Claim. b. The Spaulding/Middleton Procedural Due Process Claim As discussed, Plaintiff also alleges that the outcome of his “appeals to Defendants Spaulding and Middleton's office [was] improper and unjust.” (Compl. 11.) “It is well settled that, in order to establish a defendant's individual liability in a suit brought under § 1983, a plaintiff must show the defendant's personal involvement in the alleged constitutional deprivation.” Falls v. Pitt, No. 16-CV-8863, 2021 WL 1164185, at *31 (S.D.N.Y. Mar. 26, 2021) (quoting Grullon v. City of New Haven, 720 F.3d 133, 138 (2d Cir. 2013)) (alteration omitted). There has been a long-running split in the Second Circuit as to “whether an allegation that a defendant affirmed a disciplinary proceeding is sufficient to establish” that defendant's personal involvement in the Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 115 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 underlying constitutional violation. Samuels v. Fischer, 168 F. Supp. 3d 625, 643 (S.D.N.Y. 2016) (surveying authority on both sides) (alterations and quotation marks omitted). Relying on the Second Circuit's 2020 decision in Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020)—which eliminated special standards for supervisory liability and required that alleged constitutional violations be “established against the supervisory official directly,” id. at 618—at least two courts in this District have found that a defendant's “fail[ure] to correct another officer's violation” at a prison disciplinary hearing “does not suffice” to establish that defendant's personal involvement in the alleged constitutional violation, Washington, 2021 WL 966085, at *10 (alteration and citation omitted); see also Smart v. Annucci, No. 19- CV-7908, 2021 WL 260105, at *5 (S.D.N.Y. Jan. 26, 2021) (dismissing due process claim based on the hearing officer's “deni[al] [of the] [p]laintiff's administrative appeal” because, under Tangreti, such an allegation “cannot support the inference” that the officer was personally involved in the alleged constitutional violation). Thus, even if Roberts had committed a constitutional violation at Plaintiff's disciplinary hearing, it seems doubtful that Plaintiff could state a claim against Spaulding and Middleton based on their affirmance of Roberts' determination. But the Court need not resolve the claim against Spaulding and Middleton on this basis. Here, given “the absence of any underlying constitutional violation” at Plaintiff's disciplinary hearing to begin with, “Plaintiff cannot maintain a cause of action against Defendant[s] [Spaulding and Middleton] based on” their affirmance of Roberts' determination. Hinton v. Prack, No. 12-CV-1844, 2014 WL 4627120, at *13 (N.D.N.Y. Sept. 11, 2014); see also Barnes v. Annucci, No. 15-CV-777, 2019 WL 1387460, at *15 (N.D.N.Y. Mar. 12, 2019) (explaining that “because no constitutional violation occurred” at the plaintiff's disciplinary hearing, “and there was no wrong to remedy,” the plaintiff could not state a due process claim against a defendant based on his affirmance of the disciplinary determination), report and recommendation adopted, 201 WL 1385297 (N.D.N.Y. Mar. 27, 2019). *14 For these reasons, the Court also dismisses the Spaulding/Middleton Procedural Due Process Claim. 6. The Monell Claim To the extent Plaintiff intends to assert a claim against the County pursuant to Monell v. Department of Social Services, 436 U.S. 658 (1978), his claim fails. “Congress did not intend municipalities to be held liable [under § 1983] unless action pursuant to official municipal policy of some nature caused a constitutional tort.” Id. at 691. Thus, “to prevail on a claim against a municipality under [§] 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5) that an official policy of the municipality caused the constitutional injury.” Roe v. City of Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citing Monell, 436 U.S. at 690–91). The fifth element reflects the notion that a Monell defendant “may not be held liable under § 1983 solely because it employs a tortfeasor.” Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997). In other words, a municipality may not be held liable under § 1983 “by application of the doctrine of respondeat superior.” Pembaur v. City of Cincinnati, 475 U.S 469, 478 (1986) (italics omitted). Rather, “municipalities may only be held liable when the municipality itself deprives an individual of a constitutional right.” Newton v. City of New York, 566 F. Supp. 2d 256, 270 (S.D.N.Y. 2008). A plaintiff may satisfy the fifth element by alleging one of the following: (1) a formal policy officially endorsed by the municipality; (2) actions taken by government officials responsible for establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees. Brandon v. City of New York, 705 F. Supp. 2d 261, 276– 77 (S.D.N.Y. 2010) (citations omitted). Moreover, a plaintiff also must establish an “affirmative” causal link between the municipality's policy, custom, or practice and the alleged constitutional injury. City of Okla. City v. Tuttle, 471 U.S. 808, 824 n.8 (1985). Here, the Complaint is utterly devoid of any allegations that would establish the fifth element of a Monell claim. (See Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 116 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 generally Compl.) Plaintiff does not allege, for example, that the County officially endorsed a formal policy of retaliating against inmates who file grievances, or of depriving them of procedural due process at disciplinary hearings. Brandon, 705 F. Supp. 2d at 276. Nor does he describe actions by “government officials responsible for establishing the policies that caused the particular deprivation in question,” or a “practice so consistent and widespread” that it “constitutes a custom or usage of which a supervising policy-maker must have been aware.” Id. at 276–77. Likewise, the Complaint says nothing with respect to the County's alleged failure “to provide adequate training or supervision to subordinates.” Id. at 277. Because Plaintiff offers no allegations to establish the fifth element of a municipal liability claim, any such claim must be dismissed. See Jackson v. Westchester County, No. 18-CV-7207, 2019 WL 3338020, at *4 (S.D.N.Y. July 25, 2019) (dismissing Monell claim where the plaintiff failed to “allege the existence of any policy, any actions taken or decisions made by any ... policymaking officials, any systemic failures to train or supervise, or any practices so widespread that they practically have the force of law” and failed to “provide any factual details regarding ... other [purported] lawsuits and grievances” on similar issues (collecting cases)); see also McKenzie v. City of Mount Vernon, No. 18-CV-603, 2018 WL 6831157, at *7 (S.D.N.Y. Dec. 28, 2018) (dismissing Monell claim where the plaintiff did “not allege any facts suggesting a policy or custom that led to [the] alleged” constitutional deprivation); 5 Borough Pawn, LLC v. City of New York, 640 F. Supp. 2d 268, 300 (S.D.N.Y. 2009) (dismissing Monell claim where the “plaintiffs fail[ed] to allege any facts showing that there is a [municipal] policy—unspoken or otherwise—that violates the Federal Constitution”). III. Conclusion *15 For the reasons stated above, the Court dismisses the Grievance Claim, the Mabra Retaliation Claim, the Excessive Force Claim, the Failure to Intervene Claim, the Procedural Due Process Claims, and the Monell Claim. The Vanlierop Retaliation Claim survives. Because this is the first adjudication of Plaintiff's claims on the merits, the dismissed claims are dismissed without prejudice. Plaintiff may file an amended complaint within 30 days of the date of this Opinion & Order. The amended complaint should contain appropriate changes to remedy the deficiencies identified in this Opinion & Order. Plaintiff is advised that the amended complaint will replace, not supplement, the instant Complaint, and therefore must contain all of the claims, factual allegations, and exhibits that Plaintiff wishes the Court to consider. If Plaintiff fails to abide by the 30-day deadline, his claims may be dismissed with prejudice. The Clerk of Court is respectfully directed to terminate the instant Motion, (Dkt. No. 28), and mail a copy of this Opinion & Order to Plaintiff. SO ORDERED. All Citations Not Reported in Fed. Supp., 2021 WL 4392485 Footnotes 1 Because Plaintiff's Complaint includes several handwritten pages interspersed within a standard complaint form, the Court will refer to the ECF page stamp at the top of each page. Note that Plaintiff's Complaint refers to Defendant Spaulding as “A. Spaulding” and omits first names for all but one Defendant. (See Compl. 3– 4.) Defendants have provided additional identifying information in their Memorandum of Law. (See Defs.' Mem. 1.) 2 Although Vanlierop was not initially named as a Defendant, (see Compl. 3–4), the Court directed the Clerk of Court to add her as a Defendant on April 21, 2020, (Ord. of Serv. 1). 3 Although at one point the Complaint does not draw a clear distinction between the First Grievance and the Second Grievance, (see Compl. 7), it also suggests that the grievance confiscated by Vanlierop addressed Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 117 of 300
George v. County of Westchester, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 Vanlierop's refusal to process Plaintiff's initial grievance, (see id. at 7, 10), which necessarily indicates that Plaintiff had written a second grievance after Vanlierop refused to process the first. Specifically, Plaintiff suggests that the misbehavior report issued by Vanlierop was made in retaliation for the grievance she had seized, (see id. at 7), and Plaintiff alleges that the misbehavior report was issued in retaliation for a grievance regarding “Defendant Vanlierop's refusal to accept and process [P]laintiff's grievance,” (id. at 10). Construing the Complaint liberally, the Court therefore assumes there were two distinct grievances: (1) the First Grievance (the subject of which is unclear), and (2) the Second Grievance, which addressed Vanlierop's refusal to accept the First Grievance. It is the Second Grievance which Vanlierop allegedly confiscated, and for which she allegedly issued a false misbehavior report in retaliation. (See id. at 7, 10.) 4 Quotations from Plaintiff's submissions occasionally reflect minor corrections to spelling and grammar. 5 The Court dismissed claims against the Westchester County Department of Correction because municipal agencies or departments do not have the capacity to be sued under New York law. See Omnipoint Commc'ns, Inc. v. Town of LaGrange, 658 F. Supp. 2d 539, 552 (S.D.N.Y. 2009) (“In New York, agencies of a municipality are not suable entities.”); Hall v. City of White Plains, 185 F. Supp. 2d 293, 303 (S.D.N.Y. 2002) (“Under New York law, departments which are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and cannot sue or be sued.” (collecting cases)); see also N.Y. GEN. MUN. LAW § 2 (“The term ‘municipal corporation,’ as used in this chapter, includes only a county, town, city and village.”). The Court nevertheless concluded that in light of Plaintiff's pro se status and his “clear intention to assert claims against the County of Westchester,” it would construe the Complaint as asserting claims against the County. (Dkt. No. 9.) Likewise, given Plaintiff's intention to assert claims against Vanlierop, the Court directed that Vanlierop be added as a Defendant. (Id.) 6 Plaintiff does not specify precisely when he drafted the Second Grievance, but it necessarily was sometime between April 4 and April 9. See generally n.3 supra. 7 Note, however, that Plaintiff may not rely on temporal proximity alone to survive a summary judgment motion. See, e.g., Bryant v. Goord, No. 99-CV-9442, 2002 WL 553556, at *2 (S.D.N.Y. Apr. 12, 2002) (“Although the temporal proximity of the filing of the grievance and the issuance of the misbehavior report is circumstantial evidence of retaliation, such evidence, without more, is insufficient to survive summary judgment.”). 8 Plaintiff has attached to his Complaint a document labeled “Disciplinary Hearing Officers Report.” (See Compl. 18.) Under a section labeled “Confinement Sanctions Imposed,” the document indicates that Plaintiff was sentenced to keeplock confinement, (see id.), which is “a type of residential segregation,” Brown v. Markham, No. 16-CV-710, 2018 WL 1918625, at *1 (S.D.N.Y. Apr. 20, 2018). Although the number of days to which he was sentenced appears to be 22, because the writing is almost illegibly faint, the Court cannot determine with certainty how long Plaintiff was confined in keeplock. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 118 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2019 WL 5191506 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Bryant GIBBS, Plaintiff, v. Christopher GADWAY, Defendant. 9:19-CV-281 (GTS/DJS) | Signed 10/15/2019 Attorneys and Law Firms BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points Correctional Facility, Caller Box 119, Romulus, New York 14541. HON. LETITIA JAMES, Attorney General of the State of New York, OF COUNSEL: NICHOLAS L. ZAPP, ESQ., Assistant Attorney General, Attorney for Defendant, The Capitol, Albany, New York 12224. REPORT-RECOMMENDATION and ORDER DANIEL J. STEWART, United States Magistrate Judge *1 Plaintiff, presently an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this pro se action pursuant to 42 U.S.C. § 1983, alleging the violation of his constitutional rights. Dkt. No. 1, Compl. Following initial review of the Complaint under 28 U.S.C. §§ 1915(e) and 1915A, all claims other than an Eighth Amendment excessive force claim against Defendant Gadway were dismissed. Dkt. No. 7. In lieu of answering the Complaint, Defendant has moved for summary judgment based on Plaintiff's alleged failure to exhaust his administrative remedies. Dkt. No. 14. Plaintiff opposes the Motion. Dkt. No. 17 (“Pl.'s Opp.”). Defendant has filed a Reply. Dkt. No. 18. For the reasons which follow, the Court recommends that the Motion for Summary Judgment be granted. I. BACKGROUND Plaintiff alleges that he was assaulted by Defendant Gadway in June 2016. Compl. at p. 2. That same month Plaintiff filed an administrative grievance making this same allegation. Dkt. No. 14-3, Declaration of Christine Gregory (“Gregory Decl.”) at Ex. B. Given that the grievance concerned alleged staff misconduct the grievance was forwarded directly to the facility Superintendent. Gregory Decl. at ¶ 12. On July 16, 2016, the Superintendent responded to the grievance. Id. at ¶ 12 & Ex. C. Plaintiff alleges that he then appealed the Superintendent's determination to DOCCS' Central Office Review Committee. Pl.'s Opp. at pp. 4-5. DOCCS has no record of any such appeal. Gregory Decl. at ¶ 15; Dkt. No. 14-4, Declaration of Rachael Seguin (“Seguin Decl.”), ¶ 9 & Ex. A. II. LEGAL STANDARD FOR SUMMARY JUDGMENT Pursuant to FED. R. CIV. P. 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. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are “more than mere conclusory allegations subject to disregard ... they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion” and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)). *2 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 Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 119 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 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 Residential 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); see also Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). 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). III. DISCUSSION Defendant seeks summary judgment on the ground that Plaintiff failed to exhaust his available administrative remedies by failing to appeal the facility-level denial of his grievance. Dkt. No. 14-1, Def.'s Mem. of Law at pp. 6-7. Plaintiff counters that he attempted to exhaust his administrative remedies and that, even if he did not, he should be excused from the exhaustion requirement. Pl.'s Opp. at pp. 4-5. A. Exhaustion Procedure 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; Ross v. Blake, 136 S. Ct. 1850, 1856 (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 initiation of a civil action. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999). In New York, the administrative remedies consist of a three- step Inmate Grievance Program (“IGP”). First, a grievance is submitted to the Inmate 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 the alleged occurrence.” Id. at § 701.5(a). 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. *3 An expedited procedure exists for grievances regarding alleged harassment; this procedure also requires 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 then 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). B. Plaintiff's Failure to Exhaust Administrative Remedies 1. Whether Plaintiff Actually Filed a Grievance Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 120 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 The record before the Court establishes that while DOCCS has a record of Plaintiff's initial grievance, there is no record of any appeal of the decision on that grievance to CORC. Gregory Decl. at ¶ 15; Seguin Decl., ¶ 9 & Ex. A. “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.” White v. Drake, 2011 WL 4478988, at *3 (N.D.N.Y. Aug. 11, 2011), report and recommendation adopted, 2011 WL 4478921 (N.D.N.Y. Sept. 26, 2011); see also Berkley v. Ware, 2018 WL 3736791, at *5 (N.D.N.Y. July 6, 2018), report and recommendation adopted, 2018 WL 3730173 (N.D.N.Y. Aug. 6, 2018) (citing cases). Plaintiff makes a purely conclusory allegation that he appealed the grievance denial to CORC. Pl.'s Opp. at p. 4 (“Plaintiff appealed to the CORC”). 1 Significantly, Plaintiff has not provided a copy of the grievance appeal or even asserted on what date he filed the appeal. Gough v. Morris, 2018 WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018), report and recommendation adopted, 2019 WL 416150 (N.D.N.Y. Feb. 1, 2019) (“there is no evidence in Plaintiff's opposition, or any other submission, of ... Plaintiff's alleged appeal to CORC.”). In light of the documented proof that no such appeal was filed, such a conclusory statement is insufficient to create a material question of fact on this Motion. Toliver v. Stefinik, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016); Richardson v. Eberth, 2016 WL 1271078, at *4 (W.D.N.Y. Mar. 29, 2016). Under these circumstances, the record before the Court establishes that Plaintiff did not fully appeal his grievance regarding the alleged assault by Gadway. He, therefore, did not exhaust his administrative remedies. 2. Whether Plaintiff's Failure to Exhaust Administrative Remedies May be Excused A prisoner's failure to exhaust administrative remedies may nonetheless be excused if remedies were unavailable to the inmate. Ross v. Blake, 136 S. Ct. at 1858. As the Supreme Court stated in Ross, “[a]n inmate ... must exhaust available remedies, but need not exhaust unavailable ones.” Id. The Court provided three potential circumstances in which administrative remedies may be unavailable: (1) where the administrative procedure technically exists but operates as a “dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) where the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use”; and (3) where prison administrators “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60. *4 Plaintiff appears to make two arguments for finding that administrative remedies were unavailable to him: the lack of guidance in DOCCS' grievance procedure and alleged threats made against him. Pl.'s Opp. at p. 5. Neither is sufficient to defeat the pending Motion. Plaintiff first claims that when he became aware that the appeal he claims to have filed was never received by CORC he looked to DOCCS's grievance procedure “for guidance on what to do ... and found no guidance whatsoever on what the next step would be.” Pl.'s Opp. at p. 5. Relying on Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016), he contends he should be excused from the exhaustion requirement. See Pl.'s Opp. at p. 3. At the outset, this case presents a readily distinguishable fact pattern from that which the Second Circuit was confronted with in Williams. In that case, the District Court had dismissed the complaint based on lack of exhaustion because Plaintiff had not administratively appealed his grievance, even though the grievance had never been officially filed by DOCCS personnel at the correctional facility. Williams v. Priatno, 829 F.3d at 121. The Second Circuit reversed, finding that DOCCS' grievance procedures “do not describe a mechanism for appealing a grievance that was never filed.” Id. at 126. On the contrary here, there is no dispute that Plaintiff filed a grievance at the facility and that he received a response. Gregory Decl., Exs. B & C. It is also clear that DOCCS regulations specifically address what should have been done in a situation such as this when an appeal has allegedly been filed, but not responded to. Specifically, the applicable regulation provides that “[i]f 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.” 7 N.Y.C.R.R. § 701.5(d)(3)(i). This provision provided specific guidance to Plaintiff on how to proceed - when he did not receive notice that his appeal had been received by CORC he should have contacted the facility inmate grievance staff to verify that his appeal had been received and processed. There is no evidence that Plaintiff did so here and his failure cannot provide the basis for excusing him from the exhaustion requirement. This is not a situation, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 121 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 as in Williams, where the procedure was “so opaque and confusing” that the Plaintiff could have not understood how to proceed. Williams v. Prianto, 829 F.3d at 126. Finding Plaintiff's claims unexhausted is consistent with the decision in Gizewski v. New York State Dep't of Corr. and Cmty. Supervision which found that an inmate's claim is not exhausted if he fails to avail himself of the procedure in section 701.5(d)(3)(i). 2016 WL 3661434, at *13 (N.D.N.Y. July 5, 2016). In Gizewski, the record established that the plaintiff had filed an administrative appeal, but DOCCS personnel had failed to timely forward it to CORC. Id. at *3. Plaintiff then filed his federal lawsuit before receiving a decision on the appeal from CORC. Id. at *13. The Court acknowledged DOCCS' failure to properly process the appeal, but nonetheless granted judgment to defendants in part because “Plaintiff [wa]s also at fault for not taking any further action” pursuant to section 701.5. Id. Plaintiff here has a less compelling case than in Gizewski since there is no admissible evidence that he ever, in fact, filed an appeal to CORC. *5 Plaintiff also claims that he was threatened and retaliated against by Defendant. Pl.'s Opp. at p. 5. Under Ross, threats or other intimidation by prison employees may render administrative remedies unavailable. Ross v. Blake, 136 S. Ct. at 1860, n.3. Plaintiff's allegations are entirely conclusory, however. Plaintiff's Complaint claimed he was threatened only after filing the grievance, Compl. at p. 1, and he makes no claim that this alleged threat impacted his ability to appeal the grievance. McGinnis v. Crissell, 2019 WL 4395410, at *6 (N.D.N.Y. Apr. 26, 2019), report and recommendation adopted, 2019 WL 3228867 (N.D.N.Y. July 18, 2019) (citing cases). There is no specific allegation made by Plaintiff at all that any retaliatory action was ever taken against him as a result of filing the grievance. Such “general and conclusory statements that he was threatened are insufficient to raise a triable issue of fact as to the unavailability of the grievance procedure because of intimidation by prison administrators.” Lewis v. Wasielewski, 2018 WL 4732755, at *6 (W.D.N.Y. July 10, 2018), report and recommendation adopted, 2018 WL 4692476 (W.D.N.Y. Oct. 1, 2018) (citing cases). Plaintiff's conclusory claims, therefore, are no basis for denying summary judgment. To the extent Plaintiff attempts to argue that his grievance appeal may have been tampered with, Pl.'s Opp. at p. 5 (“Once [inmate mail] is picked up plaintiff no longer has any control over what happens to that piece of mail.”), his conclusory allegation in this regard is not sufficient to defeat summary judgment. “Courts have consistently held [ ] that an inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.” Rosado v. Fessetto, 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010); see also Rodriguez v. Cross, 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (“Courts in this Circuit have continuously held that mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.”); Artis v. Dishaw, 2016 WL 11266599, n.13 (N.D.N.Y. Sept. 12, 2016) (finding that plaintiff's failure to exhaust was not excusable, in part because, while the plaintiff “state[d] that some grievances were destroyed, but he has not submitted any copies of these grievances, nor does he specify when he attempted to file them.”). Accordingly, the Court finds that Plaintiff has not established an issue of material fact as to the availability of administrative remedies. The Court therefore recommends that Defendants' Motion be granted based upon Plaintiff's failure to exhaust. IV. CONCLUSION For the reasons stated herein, it is hereby RECOMMENDED, that Defendant's Motion for Summary Judgment (Dkt. No. 14) be GRANTED; and it is further RECOMMENDED, that the Complaint be DISMISSED; 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. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 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); FED. R. CIV. P. 72 & 6(a). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 122 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 All Citations Not Reported in Fed. Supp., 2019 WL 5191506 Footnotes 1 Plaintiff did not submit a sworn statement attesting to the fact that he filed an appeal. Nor did he file a response to Defendant's Statement of Material Facts. Although a pro se litigant is entitled to a liberal construction of his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve him of his obligation to comply with the relevant procedural rules, see Marino v. Watts, 2018 WL 3121612, at *1 (N.D.N.Y. Mar. 7, 2018), report and recommendation adopted sub nom. Marino v. Schult, 2018 WL 1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 Fed. Appx. 73 (2d Cir. 2019). The Court therefore will deem the facts as set forth in Defendant's Statement of Material Facts admitted, to the extent they are properly supported by the record. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 123 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 1227156 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Bryant GIBBS, Plaintiff, v. Christopher L. GADWAY, Corr. Officer, Clinton Corr. Fac., Defendant. 9:19-CV-0281 (GTS/DJS) | Signed 03/13/2020 Attorneys and Law Firms BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points Correctional Facility, Caller Box 119, Romulus, New York 14541. HON. LETITIA A. JAMES, Attorney General for the State of New York, OF COUNSEL: NICHOLAS LUKE ZAPP, ESQ., Assistant Attorney General, Counsel for Defendant, The Capitol, Albany, New York 12224. DECISION and ORDER GLENN T. SUDDABY, Chief United States District Judge *1 Currently before the Court, in this pro se prisoner civil rights action filed by Bryant Gibbs (“Plaintiff”) against Christopher L. Gadway, a corrections officer at Clinton Correctional Facility (“Defendant”), are (1) United States Magistrate Judge Daniel J. Stewart's Report- Recommendation recommending that Defendant's motion for summary judgment be granted, and (2) Plaintiff's Objection thereto. (Dkt. Nos. 19, 22.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, and Defendant's motion is granted. As a threshold matter, the Court finds that Plaintiff's Objection is untimely. Although the Objection is undated (Dkt. No. 22, at 20), its envelope is post-marked November 5, 2019 (Dkt. No. 22, Attach. 1, at 1). Even if the Court were to assume that Plaintiff handed the envelope to correctional officer for mailing before November 5, 2019, he could not have done so before November 2, 2019, which is the date on which he had an enclosed affidavit and affirmative of service notarized (Dkt. No. 22, at 24, 26). The deadline for Plaintiff's Objection to the Report-Recommendation (which was mailed to him on October 15, 2019), was November 1, 2019. 1 As a result, no timely Objection has been filed to the Report- Recommendation; and the Objection is thus entitled to merely a clear-error review, 2 which the Court finds it easily satisfies for the cogent reasons stated therein (see generally Dkt. No. 19). In any event, even if the Court were to accept Plaintiff's untimely Objection, the Court would still accept and adopt the Report-Recommendation. The thrust of Plaintiff's Objection is an attempt to adduce evidence (specifically, sworn testimony and a letter) showing that he had submitted to the Central Office Review Committee (or “CORC”) a timely appeal from the superintendent's denial of his grievance. (See, e.g., Dkt. No. 22, at 21-24 [containing Plf.’s Affidavit]; Dkt. No. 22, at 25 [containing a letter from Plaintiff to CORC]; Dkt. No. 22, at 1-20 [containing Plf.’s verified Objections].) However, none of this evidence was submitted to Magistrate Judge Stewart. (Compare id. with Dkt. No. 17 [Plf.’s Response to Def.’s Motion for Summary Judgment].) This failure is inexcusable given the specific notice that Plaintiff was twice given of the consequences of evidentiary deficiencies in his response to Defendant's motion. (Dkt. No. 14, at 3; Dkt. No. 15.) A district court may, and ordinarily does, refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance. 3 Although Plaintiff asserts that “[i]t wasn't until recently that [he] ... found a copy of the ... letter that he ... [had] written to the Central Office Review Committee” (Dkt. No. 22, at 14), he makes no showing that his failure to discover the letter sooner occurred despite his exercise of due diligence. Moreover, he does not even attempt to excuse his failure to submit his sworn testimony to Magistrate Judge Stewart. Under the circumstances, the Court finds that considering Plaintiff's late-blossoming evidence would frustrate the purpose of the Federal Magistrates Act of 1968. *2 Finally, even if the Court were to consider this late- blossoming evidence, the Court would be forced to reject it. Ordinarily, of course, a district court may not make credibility determinations on a motion for summary judgment. However, that general rule contains an exception: where, as here, the non-movant has adduced evidence that is so internally contradictory that no reasonable juror would undertake the suspension of disbelief necessary to credit the non-movant's allegations. See Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) (setting forth applicable standard for when to disregard testimony on motion for summary Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 124 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 judgment). In such a circumstance, the district court must make a credibility determination because the very act of considering the portion of evidence that would create a genuine dispute of material fact would constitute a rejection of the contradictory evidence as not credible. Here, the facts are analogous to the extreme facts present in Jeffreys. Plaintiff has adduced evidence that purports to show both (1) that immediately after the superintendent's denial of his grievance on July 16, 2016, Plaintiff filed an appeal with CORC (Dkt. No. 22, at 3, 22), and (2) “over two months” before July 16, 2016, Plaintiff filed his appeal with CORC, then (approximately a month later) sent a letter complaining about its non-response to his appeal, and then (on July 16, 2016) sent a second such letter (Dkt. No. 22, at 25). It is undisputed that Plaintiff filed his grievance on June 13, 2016. (Dkt. No. 14, Attach. 2, at ¶ 17.) It is also undisputed that the superintendent denied that grievance on July 16, 2016. (Id. at ¶ 19.) It is simply impossible that Plaintiff appealed that denial two months before July 16, 2016 (or on or about May 16, 2016). For each of these three alternative reasons, the Court rejects Plaintiff's Objection and accepts and adopts Magistrate Judge Stewart's Report-Recommendation. ACCORDINGLY, it is ORDERED that Magistrate Judge Stewart's Report- Recommendation (Dkt. No. 19) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendant's motion for summary judgment (Dkt. No. 14) is GRANTED; and it is further ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. All Citations Not Reported in Fed. Supp., 2020 WL 1227156 Footnotes 1 Under the applicable rules, the time period for the filing of an Objection is fourteen (14) calendar days from the date of filing of the Report-Recommendation (unless the fourteenth day is a Saturday, Sunday, or legal holiday, in which case the period continues to run until then end of the next day that is not a Saturday, Sunday, or legal holiday), plus three (3) calendar days if the Report-Recommendation was served on the objecting party by mail. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); N.D.N.Y. L.R. 72.1(c); Fed. R. Civ. P. 6(a) (1)(C); Fed. R. Civ. P. 6(d). 2 “When no timely objection [to a recommendation] is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, the court is permitted to adopt the sections reviewed “so long as those sections are not facially erroneous.” See Batista v. Walker, 94- CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.”). 3 See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a magistrate's report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff “offered no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 125 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary evidentiary hearing is required.”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 126 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2019 WL 5191506 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Bryant GIBBS, Plaintiff, v. Christopher GADWAY, Defendant. 9:19-CV-281 (GTS/DJS) | Signed 10/15/2019 Attorneys and Law Firms BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points Correctional Facility, Caller Box 119, Romulus, New York 14541. HON. LETITIA JAMES, Attorney General of the State of New York, OF COUNSEL: NICHOLAS L. ZAPP, ESQ., Assistant Attorney General, Attorney for Defendant, The Capitol, Albany, New York 12224. REPORT-RECOMMENDATION and ORDER DANIEL J. STEWART, United States Magistrate Judge *1 Plaintiff, presently an inmate in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this pro se action pursuant to 42 U.S.C. § 1983, alleging the violation of his constitutional rights. Dkt. No. 1, Compl. Following initial review of the Complaint under 28 U.S.C. §§ 1915(e) and 1915A, all claims other than an Eighth Amendment excessive force claim against Defendant Gadway were dismissed. Dkt. No. 7. In lieu of answering the Complaint, Defendant has moved for summary judgment based on Plaintiff's alleged failure to exhaust his administrative remedies. Dkt. No. 14. Plaintiff opposes the Motion. Dkt. No. 17 (“Pl.'s Opp.”). Defendant has filed a Reply. Dkt. No. 18. For the reasons which follow, the Court recommends that the Motion for Summary Judgment be granted. I. BACKGROUND Plaintiff alleges that he was assaulted by Defendant Gadway in June 2016. Compl. at p. 2. That same month Plaintiff filed an administrative grievance making this same allegation. Dkt. No. 14-3, Declaration of Christine Gregory (“Gregory Decl.”) at Ex. B. Given that the grievance concerned alleged staff misconduct the grievance was forwarded directly to the facility Superintendent. Gregory Decl. at ¶ 12. On July 16, 2016, the Superintendent responded to the grievance. Id. at ¶ 12 & Ex. C. Plaintiff alleges that he then appealed the Superintendent's determination to DOCCS' Central Office Review Committee. Pl.'s Opp. at pp. 4-5. DOCCS has no record of any such appeal. Gregory Decl. at ¶ 15; Dkt. No. 14-4, Declaration of Rachael Seguin (“Seguin Decl.”), ¶ 9 & Ex. A. II. LEGAL STANDARD FOR SUMMARY JUDGMENT Pursuant to FED. R. CIV. P. 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. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are “more than mere conclusory allegations subject to disregard ... they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion” and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)). *2 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 Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 127 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 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 Residential 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); see also Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). 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). III. DISCUSSION Defendant seeks summary judgment on the ground that Plaintiff failed to exhaust his available administrative remedies by failing to appeal the facility-level denial of his grievance. Dkt. No. 14-1, Def.'s Mem. of Law at pp. 6-7. Plaintiff counters that he attempted to exhaust his administrative remedies and that, even if he did not, he should be excused from the exhaustion requirement. Pl.'s Opp. at pp. 4-5. A. Exhaustion Procedure 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; Ross v. Blake, 136 S. Ct. 1850, 1856 (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 initiation of a civil action. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999). In New York, the administrative remedies consist of a three- step Inmate Grievance Program (“IGP”). First, a grievance is submitted to the Inmate 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 the alleged occurrence.” Id. at § 701.5(a). 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. *3 An expedited procedure exists for grievances regarding alleged harassment; this procedure also requires 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 then 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). B. Plaintiff's Failure to Exhaust Administrative Remedies 1. Whether Plaintiff Actually Filed a Grievance Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 128 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 The record before the Court establishes that while DOCCS has a record of Plaintiff's initial grievance, there is no record of any appeal of the decision on that grievance to CORC. Gregory Decl. at ¶ 15; Seguin Decl., ¶ 9 & Ex. A. “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.” White v. Drake, 2011 WL 4478988, at *3 (N.D.N.Y. Aug. 11, 2011), report and recommendation adopted, 2011 WL 4478921 (N.D.N.Y. Sept. 26, 2011); see also Berkley v. Ware, 2018 WL 3736791, at *5 (N.D.N.Y. July 6, 2018), report and recommendation adopted, 2018 WL 3730173 (N.D.N.Y. Aug. 6, 2018) (citing cases). Plaintiff makes a purely conclusory allegation that he appealed the grievance denial to CORC. Pl.'s Opp. at p. 4 (“Plaintiff appealed to the CORC”). 1 Significantly, Plaintiff has not provided a copy of the grievance appeal or even asserted on what date he filed the appeal. Gough v. Morris, 2018 WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018), report and recommendation adopted, 2019 WL 416150 (N.D.N.Y. Feb. 1, 2019) (“there is no evidence in Plaintiff's opposition, or any other submission, of ... Plaintiff's alleged appeal to CORC.”). In light of the documented proof that no such appeal was filed, such a conclusory statement is insufficient to create a material question of fact on this Motion. Toliver v. Stefinik, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016); Richardson v. Eberth, 2016 WL 1271078, at *4 (W.D.N.Y. Mar. 29, 2016). Under these circumstances, the record before the Court establishes that Plaintiff did not fully appeal his grievance regarding the alleged assault by Gadway. He, therefore, did not exhaust his administrative remedies. 2. Whether Plaintiff's Failure to Exhaust Administrative Remedies May be Excused A prisoner's failure to exhaust administrative remedies may nonetheless be excused if remedies were unavailable to the inmate. Ross v. Blake, 136 S. Ct. at 1858. As the Supreme Court stated in Ross, “[a]n inmate ... must exhaust available remedies, but need not exhaust unavailable ones.” Id. The Court provided three potential circumstances in which administrative remedies may be unavailable: (1) where the administrative procedure technically exists but operates as a “dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) where the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use”; and (3) where prison administrators “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60. *4 Plaintiff appears to make two arguments for finding that administrative remedies were unavailable to him: the lack of guidance in DOCCS' grievance procedure and alleged threats made against him. Pl.'s Opp. at p. 5. Neither is sufficient to defeat the pending Motion. Plaintiff first claims that when he became aware that the appeal he claims to have filed was never received by CORC he looked to DOCCS's grievance procedure “for guidance on what to do ... and found no guidance whatsoever on what the next step would be.” Pl.'s Opp. at p. 5. Relying on Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016), he contends he should be excused from the exhaustion requirement. See Pl.'s Opp. at p. 3. At the outset, this case presents a readily distinguishable fact pattern from that which the Second Circuit was confronted with in Williams. In that case, the District Court had dismissed the complaint based on lack of exhaustion because Plaintiff had not administratively appealed his grievance, even though the grievance had never been officially filed by DOCCS personnel at the correctional facility. Williams v. Priatno, 829 F.3d at 121. The Second Circuit reversed, finding that DOCCS' grievance procedures “do not describe a mechanism for appealing a grievance that was never filed.” Id. at 126. On the contrary here, there is no dispute that Plaintiff filed a grievance at the facility and that he received a response. Gregory Decl., Exs. B & C. It is also clear that DOCCS regulations specifically address what should have been done in a situation such as this when an appeal has allegedly been filed, but not responded to. Specifically, the applicable regulation provides that “[i]f 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.” 7 N.Y.C.R.R. § 701.5(d)(3)(i). This provision provided specific guidance to Plaintiff on how to proceed - when he did not receive notice that his appeal had been received by CORC he should have contacted the facility inmate grievance staff to verify that his appeal had been received and processed. There is no evidence that Plaintiff did so here and his failure cannot provide the basis for excusing him from the exhaustion requirement. This is not a situation, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 129 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 as in Williams, where the procedure was “so opaque and confusing” that the Plaintiff could have not understood how to proceed. Williams v. Prianto, 829 F.3d at 126. Finding Plaintiff's claims unexhausted is consistent with the decision in Gizewski v. New York State Dep't of Corr. and Cmty. Supervision which found that an inmate's claim is not exhausted if he fails to avail himself of the procedure in section 701.5(d)(3)(i). 2016 WL 3661434, at *13 (N.D.N.Y. July 5, 2016). In Gizewski, the record established that the plaintiff had filed an administrative appeal, but DOCCS personnel had failed to timely forward it to CORC. Id. at *3. Plaintiff then filed his federal lawsuit before receiving a decision on the appeal from CORC. Id. at *13. The Court acknowledged DOCCS' failure to properly process the appeal, but nonetheless granted judgment to defendants in part because “Plaintiff [wa]s also at fault for not taking any further action” pursuant to section 701.5. Id. Plaintiff here has a less compelling case than in Gizewski since there is no admissible evidence that he ever, in fact, filed an appeal to CORC. *5 Plaintiff also claims that he was threatened and retaliated against by Defendant. Pl.'s Opp. at p. 5. Under Ross, threats or other intimidation by prison employees may render administrative remedies unavailable. Ross v. Blake, 136 S. Ct. at 1860, n.3. Plaintiff's allegations are entirely conclusory, however. Plaintiff's Complaint claimed he was threatened only after filing the grievance, Compl. at p. 1, and he makes no claim that this alleged threat impacted his ability to appeal the grievance. McGinnis v. Crissell, 2019 WL 4395410, at *6 (N.D.N.Y. Apr. 26, 2019), report and recommendation adopted, 2019 WL 3228867 (N.D.N.Y. July 18, 2019) (citing cases). There is no specific allegation made by Plaintiff at all that any retaliatory action was ever taken against him as a result of filing the grievance. Such “general and conclusory statements that he was threatened are insufficient to raise a triable issue of fact as to the unavailability of the grievance procedure because of intimidation by prison administrators.” Lewis v. Wasielewski, 2018 WL 4732755, at *6 (W.D.N.Y. July 10, 2018), report and recommendation adopted, 2018 WL 4692476 (W.D.N.Y. Oct. 1, 2018) (citing cases). Plaintiff's conclusory claims, therefore, are no basis for denying summary judgment. To the extent Plaintiff attempts to argue that his grievance appeal may have been tampered with, Pl.'s Opp. at p. 5 (“Once [inmate mail] is picked up plaintiff no longer has any control over what happens to that piece of mail.”), his conclusory allegation in this regard is not sufficient to defeat summary judgment. “Courts have consistently held [ ] that an inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.” Rosado v. Fessetto, 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010); see also Rodriguez v. Cross, 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (“Courts in this Circuit have continuously held that mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.”); Artis v. Dishaw, 2016 WL 11266599, n.13 (N.D.N.Y. Sept. 12, 2016) (finding that plaintiff's failure to exhaust was not excusable, in part because, while the plaintiff “state[d] that some grievances were destroyed, but he has not submitted any copies of these grievances, nor does he specify when he attempted to file them.”). Accordingly, the Court finds that Plaintiff has not established an issue of material fact as to the availability of administrative remedies. The Court therefore recommends that Defendants' Motion be granted based upon Plaintiff's failure to exhaust. IV. CONCLUSION For the reasons stated herein, it is hereby RECOMMENDED, that Defendant's Motion for Summary Judgment (Dkt. No. 14) be GRANTED; and it is further RECOMMENDED, that the Complaint be DISMISSED; 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. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 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); FED. R. CIV. P. 72 & 6(a). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 130 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 All Citations Not Reported in Fed. Supp., 2019 WL 5191506 Footnotes 1 Plaintiff did not submit a sworn statement attesting to the fact that he filed an appeal. Nor did he file a response to Defendant's Statement of Material Facts. Although a pro se litigant is entitled to a liberal construction of his filings, see Sykes v. Bank of America, 723 F.3d 399, 403 (2d Cir. 2013), his pro se status does not relieve him of his obligation to comply with the relevant procedural rules, see Marino v. Watts, 2018 WL 3121612, at *1 (N.D.N.Y. Mar. 7, 2018), report and recommendation adopted sub nom. Marino v. Schult, 2018 WL 1578163 (N.D.N.Y. Mar. 30, 2018), aff'd, 764 Fed. Appx. 73 (2d Cir. 2019). The Court therefore will deem the facts as set forth in Defendant's Statement of Material Facts admitted, to the extent they are properly supported by the record. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 131 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 1227156 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Bryant GIBBS, Plaintiff, v. Christopher L. GADWAY, Corr. Officer, Clinton Corr. Fac., Defendant. 9:19-CV-0281 (GTS/DJS) | Signed 03/13/2020 Attorneys and Law Firms BRYANT GIBBS, 11-R-0220, Plaintiff, Pro Se, Five Points Correctional Facility, Caller Box 119, Romulus, New York 14541. HON. LETITIA A. JAMES, Attorney General for the State of New York, OF COUNSEL: NICHOLAS LUKE ZAPP, ESQ., Assistant Attorney General, Counsel for Defendant, The Capitol, Albany, New York 12224. DECISION and ORDER GLENN T. SUDDABY, Chief United States District Judge *1 Currently before the Court, in this pro se prisoner civil rights action filed by Bryant Gibbs (“Plaintiff”) against Christopher L. Gadway, a corrections officer at Clinton Correctional Facility (“Defendant”), are (1) United States Magistrate Judge Daniel J. Stewart's Report- Recommendation recommending that Defendant's motion for summary judgment be granted, and (2) Plaintiff's Objection thereto. (Dkt. Nos. 19, 22.) For the reasons set forth below, the Report-Recommendation is accepted and adopted in its entirety, and Defendant's motion is granted. As a threshold matter, the Court finds that Plaintiff's Objection is untimely. Although the Objection is undated (Dkt. No. 22, at 20), its envelope is post-marked November 5, 2019 (Dkt. No. 22, Attach. 1, at 1). Even if the Court were to assume that Plaintiff handed the envelope to correctional officer for mailing before November 5, 2019, he could not have done so before November 2, 2019, which is the date on which he had an enclosed affidavit and affirmative of service notarized (Dkt. No. 22, at 24, 26). The deadline for Plaintiff's Objection to the Report-Recommendation (which was mailed to him on October 15, 2019), was November 1, 2019. 1 As a result, no timely Objection has been filed to the Report- Recommendation; and the Objection is thus entitled to merely a clear-error review, 2 which the Court finds it easily satisfies for the cogent reasons stated therein (see generally Dkt. No. 19). In any event, even if the Court were to accept Plaintiff's untimely Objection, the Court would still accept and adopt the Report-Recommendation. The thrust of Plaintiff's Objection is an attempt to adduce evidence (specifically, sworn testimony and a letter) showing that he had submitted to the Central Office Review Committee (or “CORC”) a timely appeal from the superintendent's denial of his grievance. (See, e.g., Dkt. No. 22, at 21-24 [containing Plf.’s Affidavit]; Dkt. No. 22, at 25 [containing a letter from Plaintiff to CORC]; Dkt. No. 22, at 1-20 [containing Plf.’s verified Objections].) However, none of this evidence was submitted to Magistrate Judge Stewart. (Compare id. with Dkt. No. 17 [Plf.’s Response to Def.’s Motion for Summary Judgment].) This failure is inexcusable given the specific notice that Plaintiff was twice given of the consequences of evidentiary deficiencies in his response to Defendant's motion. (Dkt. No. 14, at 3; Dkt. No. 15.) A district court may, and ordinarily does, refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance. 3 Although Plaintiff asserts that “[i]t wasn't until recently that [he] ... found a copy of the ... letter that he ... [had] written to the Central Office Review Committee” (Dkt. No. 22, at 14), he makes no showing that his failure to discover the letter sooner occurred despite his exercise of due diligence. Moreover, he does not even attempt to excuse his failure to submit his sworn testimony to Magistrate Judge Stewart. Under the circumstances, the Court finds that considering Plaintiff's late-blossoming evidence would frustrate the purpose of the Federal Magistrates Act of 1968. *2 Finally, even if the Court were to consider this late- blossoming evidence, the Court would be forced to reject it. Ordinarily, of course, a district court may not make credibility determinations on a motion for summary judgment. However, that general rule contains an exception: where, as here, the non-movant has adduced evidence that is so internally contradictory that no reasonable juror would undertake the suspension of disbelief necessary to credit the non-movant's allegations. See Jeffreys v. City of New York, 426 F.3d 549, 554-55 (2d Cir. 2005) (setting forth applicable standard for when to disregard testimony on motion for summary Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 132 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 judgment). In such a circumstance, the district court must make a credibility determination because the very act of considering the portion of evidence that would create a genuine dispute of material fact would constitute a rejection of the contradictory evidence as not credible. Here, the facts are analogous to the extreme facts present in Jeffreys. Plaintiff has adduced evidence that purports to show both (1) that immediately after the superintendent's denial of his grievance on July 16, 2016, Plaintiff filed an appeal with CORC (Dkt. No. 22, at 3, 22), and (2) “over two months” before July 16, 2016, Plaintiff filed his appeal with CORC, then (approximately a month later) sent a letter complaining about its non-response to his appeal, and then (on July 16, 2016) sent a second such letter (Dkt. No. 22, at 25). It is undisputed that Plaintiff filed his grievance on June 13, 2016. (Dkt. No. 14, Attach. 2, at ¶ 17.) It is also undisputed that the superintendent denied that grievance on July 16, 2016. (Id. at ¶ 19.) It is simply impossible that Plaintiff appealed that denial two months before July 16, 2016 (or on or about May 16, 2016). For each of these three alternative reasons, the Court rejects Plaintiff's Objection and accepts and adopts Magistrate Judge Stewart's Report-Recommendation. ACCORDINGLY, it is ORDERED that Magistrate Judge Stewart's Report- Recommendation (Dkt. No. 19) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendant's motion for summary judgment (Dkt. No. 14) is GRANTED; and it is further ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. All Citations Not Reported in Fed. Supp., 2020 WL 1227156 Footnotes 1 Under the applicable rules, the time period for the filing of an Objection is fourteen (14) calendar days from the date of filing of the Report-Recommendation (unless the fourteenth day is a Saturday, Sunday, or legal holiday, in which case the period continues to run until then end of the next day that is not a Saturday, Sunday, or legal holiday), plus three (3) calendar days if the Report-Recommendation was served on the objecting party by mail. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2); N.D.N.Y. L.R. 72.1(c); Fed. R. Civ. P. 6(a) (1)(C); Fed. R. Civ. P. 6(d). 2 “When no timely objection [to a recommendation] is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, the court is permitted to adopt the sections reviewed “so long as those sections are not facially erroneous.” See Batista v. Walker, 94- CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific objection is made, so long as those sections are not facially erroneous.”). 3 See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a magistrate's report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff “offered no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 133 of 300
Gibbs v. Gadway, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 the district courts.”); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary evidentiary hearing is required.”). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 134 of 300
Gough v. Morris, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2018 WL 7199494 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Lamont GOUGH, Plaintiff, v. Sergeant MORRIS, Sergeant Davidson, John Doe Correctional Officer 1, John Doe Correctional Officer 2, and John Doe Correctional Officer 3, Defendants. 9:16-CV-1107 (GTS/DJS) | Signed 12/14/2018 Attorneys and Law Firms LAMONT GOUGH, Plaintiff, Pro Se, 13-A-0134, Coxsackie Correctional Facility, Box 999, Coxsackie, New York 12051-099. BARBARA D. UNDERWOOD, Attorney General of the State of New York, OF COUNSEL: WILLIAM A. SCOTT, ESQ., The Capitol, Albany, New York 12224, Attorney for Defendants. REPORT-RECOMMENDATION and ORDER DANIEL J. STEWART, United States Magistrate Judge *1 On September 9, 2016, pro se Plaintiff Lamont Gough commenced this action pursuant to 42 U.S.C. § 1983, asserting claims arising from his confinement at Coxsackie Correctional Facility (“Coxsackie C.F.”). Dkt. No. 1, Compl. Plaintiff has named two Defendants, Sergeant Davidson and Sergeant Morris, and three John Doe Defendants who are purported to be officers at Coxsackie C.F. Following initial review by the District Court, Plaintiff's First Amendment retaliation claim against Defendant Morris, Eighth Amendment excessive force claim against Defendant Morris, and Eighth Amendment failure to intervene claim against Defendant Davidson and the three John Does survive. Dkt. No. 9. Specifically, Plaintiff contends that in retaliation for filing a grievance, he was assaulted by Defendant Morris while Defendant Davidson witnessed and did not intervene. Compl. Presently before this Court is the Motion for Summary Judgment of Defendants Davidson and Morris, which Plaintiff opposes and to which Defendants have filed a reply. Dkt. No. 47, Defs.' Mot. Summ. J.; Dkt. No. 49, Pl.'s Opp.; Dkt. No. 50, Defs.' Reply. Defendants contend that Plaintiff failed to exhaust his administrative remedies, and that his Complaint should therefore be dismissed. Dkt. No. 47-13, Def.'s Mem. of Law. The Court finds that Defendants have established that Plaintiff failed to exhaust his administrative remedies and therefore recommends that the Motion be granted. In addition, as discussed below, the Court recommends that Plaintiff's claims against the still unidentified Defendants be dismissed sua sponte. I. 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. FED. R. CIV. P. 56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are ordinarily not sufficient to defeat a motion for summary judgment when the moving party has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994). To that end, sworn statements are “more than mere conclusory allegations subject to disregard ... they are specific and detailed allegations of fact, made under penalty of perjury, and should be treated as evidence in deciding a summary judgment motion” and the credibility of such statements is better left to a trier of fact. Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) ). *2 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 Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he trial court's task at the summary judgment Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 135 of 300
Gough v. Morris, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 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 Residential 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 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); accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). 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). II. EXHAUSTION A. Exhaustion Procedure 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; Ross v. Blake, 136 S. Ct. 1850, 1856 (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 initiation of a civil action. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999). 1 In New York, the administrative remedies consist of a three- step Inmate Grievance Program (“IGP”). First, a grievance is submitted to the Inmate 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 the alleged occurrence.” Id. at § 701.5(a). 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. B. Plaintiff's Failure to Exhaust Administrative Remedies *3 At the time of the relevant events of this action, Coxsackie C.F. had a grievance program to which inmates had full access. Dkt. No. 47-3, Decl. of Rachel Seguin, at ¶¶ 4-12; Dkt. No. 47-4, Seguin Decl., Ex. A. There are no recorded grievances filed by Plaintiff regarding any alleged assault or use of excessive force claims against Defendant Morris, an alleged failure to intervene claim against Defendant Davidson, or a retaliation claim against Defendant Morris. See Seguin Decl. at ¶¶ 20-23. While Plaintiff was housed at Coxsackie, Plaintiff filed five grievances. Dkt. No. 47-8, Decl. of Tisha Surprenant, ¶ 10; Dkt. No. 47-9, Surprenant Decl., Ex. A. Three of those five grievances were filed before the events at issue in this lawsuit, and so Plaintiff could not have exhausted his administrative remedies utilizing these grievances. Surprenant Decl. at ¶ 11; Surprenant Decl., Ex. A (reflecting filing dates of February 28, 2014, April 23, 2014, and September 10, 2014). Plaintiff filed two grievances at Coxsackie after the date of the alleged incident. Id. Those grievances are not related to the events at issue in the Complaint. The first, “Unprofessional Remarks,” was filed on April 22, 2015, four months after the events at issue in the Complaint, and is dated March 20, 2015, nearly three months after the events at issue. Dkt. No. 47-7, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 136 of 300
Gough v. Morris, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 Seguin Decl., Ex. D. This grievance alleged that Plaintiff was being verbally harassed, that Plaintiff's mail was being violated, and that he was being called a rapist; that grievance only named Counselor Iarusso. Id. While this grievance has some similar allegations as does Plaintiff's claim, it has to do with Counselor Iarusso “going around the jail” talking about Plaintiff, and other verbal harassment which was allegedly ongoing, unlike the verbal and physical alteration alleged in the Complaint. It does not provide any allegations regarding the physical assault and is not otherwise particularized to the January 22, 2015 incident. The other grievance filed after the alleged assault, “Sneakers Not Mailed Out,” pertained to sneakers that Plaintiff believed were in the package room. Dkt. No. 47-6, Seguin Decl., Ex. C. This grievance is not relevant to the events at issue in the Complaint and did not name any of the Defendants in this case. As such, neither of these grievances could have been used to properly exhaust Plaintiff's claims. In his deposition, Plaintiff claimed that he did file a grievance regarding harassment that went to the superintendent. Dkt. No. 47-11, Decl. of Louis Jim, Ex. A, Pl.'s Dep., pp. 20-23. Such harassment grievances are subject to expedited review, which provides for first level review by the superintendent, and a subsequent appeal to the Central Office Review Committee to have fully exhausted the grievance. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.8. While Plaintiff claims that he did appeal the superintendent's response to CORC, there is no evidence in Plaintiff's opposition, or any other submission, of either the harassment grievance itself, the superintendent's response, or Plaintiff's alleged appeal to CORC. Pl.'s Dep. at pp. 21-22. Indeed, Plaintiff testified at his deposition that he never received a response from CORC, and that he did not write a grievance complaining that he did not receive a response. Id. at p. 39. Plaintiff's “vague and conclusory allegations that he filed other grievances ... do not, in light of the documentation that Defendants have provided about Plaintiff's grievance history, create a factual dispute material to the issue of whether Plaintiff exhausted his administrative remedies.” Toliver v. Stefinik, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016). As such, Plaintiff failed to exhaust his administrative remedies relative to the complaint. C. Whether Plaintiff's Failure to Exhaust Administrative Remedies May be Excused *4 A prisoner's failure to exhaust administrative remedies may nonetheless be excused if remedies were unavailable to the inmate. Ross v. Blake, 136 S. Ct. at 1858. As the Supreme Court stated in that case, “[a]n inmate ... must exhaust available remedies, but need not exhaust unavailable ones.” Id. The Court provided three potential circumstances in which administrative remedies may be unavailable: (1) where the administrative procedure technically exists but operates as a “dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) where the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use”; and (3) where prison administrators “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60. In his opposition papers, Plaintiff claims that (1) he followed the proper procedures and was ignored; (2) his mail was tampered with; (3) he feared retaliation, and (4) he grieved through informal means. See Compl. at p. 13; 2 Dkt. No. 1-1, Exs. to Compl. at pp. 18-21; Pl.'s Opp. at pp. 2-5. None of these allegations, however, are sufficient to raise an issue of material fact as to the availability of administrative remedies that would excuse his failure to exhaust. First, in his Complaint, Plaintiff describes frustration with Coxsackie C.F.'s grievance process, stating that he followed the proper procedures and that he did not get any responses and that he was “basically ignored.” Exs. to Compl. at p. 20. In his letters to correctional facility staff, Plaintiff specifically describes issues with Coxsackie C.F.'s mail process, stating that the mail he attempts to send is not properly delivered and that he believes his mail is being tampered with. Seguin Decl., Ex. C. at p. 21; Seguin Decl., Ex. D at p. 6. Plaintiff also makes loose claims that his paperwork gets lost. Seguin Decl., Ex. D at p. 6. Plaintiff attaches to his Opposition a written request dated February 15th, 2015, in which Plaintiff asked for his grievances back and described his frustration regarding lack of responses and allegedly missing paperwork. Pl.'s Opp. at p. 6. However, it is entirely unclear to what this refers; it is not evident that this relates to the claims in Plaintiff's Complaint, and Plaintiff does not demonstrate that it does. In his general allegations regarding the mail and being ignored, Plaintiff fails to provide any facts regarding when he tried to file administrative grievances or appeals regarding the alleged assault. For example, he offers no evidence about when or to whom he allegedly provided grievances regarding the incident at issue in this case. Nor does he provide copies Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 137 of 300
Gough v. Morris, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 of the any alleged grievances regarding this incident. “Courts have consistently held [ ] that an inmate's general claim that his grievance was lost or destroyed does not excuse the exhaustion requirement.” Rosado v. Fessetto, 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010); Rodriguez v. Cross, 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017) (“Courts in this Circuit have continuously held that mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.”); Artis v. Dishaw, 2016 WL 11266599, n.13 (N.D.N.Y. Sept. 12, 2016) (finding that plaintiff's failure to exhaust was not excusable, in part because, while the plaintiff “state[d] that some grievances were destroyed, but he has not submitted any copies of these grievances, nor does he specify when he attempted to file them.”). *5 Further, even if Plaintiff did believe that his attempts at filing a grievance regarding his assault would be ineffective, this does not excuse his failure to do so. The case law is clear that “[p]risoners are required to exhaust their administrative remedies ‘even if they believe that administrative remedies would be ineffective or futile.’ ” Harrison v. Goord, 2009 WL 1605770, at *4 (S.D.N.Y. June 9, 2009); see also Woodford v. Ngo, 548 U.S. at 89-90 (stating that “exhaustion requirements are designed to deal with parties who do not want to exhaust,” including those who “conclude—correctly or incorrectly— that exhaustion is not efficient in that party's particular case.”). Plaintiff asserts in his Complaint and deposition that he is being consistently harassed and intimidated by officers at Coxsackie C.F. Exs. to Compl. at p. 20; Pl.'s Dep. at p. 39. Plaintiff also stated in his deposition that he stopped writing grievances because he had been threatened. Pl.'s Dep. at p. 39; see also Exs. to Compl. at p. 36. Under Ross, threats or other intimidation by prison employees may render administrative remedies unavailable. Ross v. Blake, 136 S. Ct. at 1860, n.3. However, on this record such a contention is inconsistent with Plaintiff's assertions that he did properly grieve the assault, and with Plaintiff's filing of grievances after that time. See, e.g., Pl.'s Opp. at ¶ 20; Seguin Decl. Ex. B; Crawford v. Baltazar, 2018 WL 2041711, at *6 (S.D.N.Y. Apr. 30, 2018). Instead, Plaintiff's allegations amount to a “generalized fear of retaliation” without allegations of any specific threats or other actions that would prevent him from filing a grievance regarding the alleged assault. Such allegations are insufficient to excuse a failure to exhaust. See Brown v. Napoli, 687 F. Supp. 2d 295, 297 (W.D.N.Y. 2009) (“[P]laintiff's mere allegation of a generalized fear of retaliation is insufficient to excuse his failure to file a grievance[.]”); see also Rodriguez v. Cty. of Suffolk, 2014 WL 3531897, at *5 (E.D.N.Y. June 30, 2014) (“Courts tend to find mere ‘generalized fear’ when no actual threat was made.”) (internal citation omitted). Plaintiff also appears to contend that he satisfied the exhaustion requirement via informal means, as in his Complaint he states that he was interviewed by the Inspector General. Compl. at p. 13. However, the described interactions, indicating that prison officials were likely aware of the nature of Plaintiff's complaint, are insufficient to constitute “proper exhaustion.” See Davis v. Doe, 2017 WL 8640829, at 3 (N.D.N.Y. Dec. 29, 2017). See also Macias v. Zenk, 495 F.3d 37,44 (2d Cir. 2007) (“Alerting the prison officials as to the nature of the wrong for which redress is sought, does not constitute ‘proper exhaustion.’ ”) (internal citation omitted). “Regardless of whether ... informal complaints put the prison officials on notice of his grievance ‘in a substantive sense,’ ... to satisfy the PLRA a prisoner must also procedurally exhaust his available administrative remedies.” Id. at 43. Plaintiff has not provided any evidence that could satisfy any of the three circumstances that could excuse failing to exhaust under Ross. Plaintiff does not demonstrate that the grievance procedure operated as a dead end in that officers were unable or unwilling to provide relief, or that the administrative scheme was so opaque that it was incapable of use. Ross v. Blake, 136 S. Ct. at 1853-54. Nor does Plaintiff sufficiently allege that prison officials “ ‘misled, threatened, or otherwise deterred’ him from utilizing the IGP.” Hooks v. Howard, 2010 WL 1235236, at *7 (N.D.N.Y. Mar. 30, 2010). *6 Accordingly, for the foregoing reasons, the Court finds that Plaintiff has not established an issue of material fact as to the availability of administrative remedies. The Court therefore recommends that Defendants' Motion be granted based upon Plaintiff's failure to exhaust. III. JOHN DOE DEFENDANTS As to the still unidentified John Doe Defendants, I recommend these Defendants be dismissed for a number of reasons: (1) Plaintiff's failure to comply with a court order under Fed. R. Civ. P. 16(f); 3 (2) Plaintiff's failure to prosecute under Fed. R. Civ. P. 41(b) and N.D.N.Y.L.R. 41.2(a); and (3) Plaintiff's failure to serve within 90 days under Fed. R. Civ. P. 4(m). I also note that even if Plaintiff had properly named Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 138 of 300
Gough v. Morris, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 the John Doe Defendants, it would be of no consequence because, as noted above, Plaintiff has failed to exhaust his administrative remedies. IV. CONCLUSION For the reasons stated herein, it is hereby RECOMMENDED, that Defendants' Motion for Summary Judgment (Dkt. No. 47) be GRANTED and that Plaintiff's claims be DISMISSED; and it is further RECOMMENDED, that Plaintiff's claims against the John Doe Defendants be DISMISSED sua sponte; and it is further ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties to this action. Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) 4 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); FED. R. CIV. P. 72 & 6(a). All Citations Not Reported in Fed. Supp., 2018 WL 7199494 Footnotes 1 Exhaustion of administrative remedies is an affirmative defense which must be raised by the defendant. See Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999). The Named Defendants properly raised the affirmative defense in their Answer to the Complaint. Dkt. No. 18 at ¶ 14. 2 When citing to Plaintiff's submissions, the Court will cite to the pagination assigned by the Court's Case Management Electronic Case Files (“CM/ECF”) System. 3 The District Judge ordered Plaintiff to “take reasonable steps through discovery to ascertain their identities,” and “advised that any unnamed individual is not timely served, the action may be dismissed against that defendant.” Dkt. No. 9 at p. 12; see also Dkt. No. 13 (Decision and Order providing guidance on identifying the John Doe Defendants). Discovery ended in this matter on January 31, 2018. See Dkt. No. 41. 4 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. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 139 of 300
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2021 WL 981849 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Robert JACKSON, Plaintiff, v. C.O. Angela JACKSON, et al., Defendants. 16-CV-08516 (PMH) | Signed 03/16/2021 Attorneys and Law Firms Robert Jackson, Beacon, NY, pro se. Amanda Yoon, NYS Office of the Attorney General, New York, NY, Rebecca Lynn Johannesen, Colorado Department of Law, Denver, CO, for Defendants. MEMORANDUM OPINION AND ORDER PHILIP M. HALPERN, United States District Judge: *1 Plaintiff Robert Jackson (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983 against Correction Officers Angela Jackson, M. Walker, and J. James (collectively, “Defendants”). (Doc. 2, “Compl.”). Specifically, Plaintiff alleges that in June 2015 —while incarcerated at Sing Sing Correctional Facility in Ossining, New York (“Sing Sing”)—Defendants violated his constitutional rights by: (1) using excessive force against him, in violation of the Eighth Amendment; and (2) filing a false internal complaint against him, in violation of the Fourteenth Amendment. (See generally id.). On July 10, 2017, Defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's due process claim along with all claims for monetary damages against them in their official capacities. (Doc. 16). By Opinion & Order dated April 20, 2018, Judge Román granted Defendants’ motion and granted Plaintiff leave “to file an Amended Complaint ... on or before June 19, 2018.” (Doc. 19 at 8). Despite securing an extension of the time within which to file his amended pleading, Plaintiff failed to do so. Consequently, the only claim remaining in this action is one for excessive force against Defendants in their individual capacities. Defendants filed an Answer on August 30, 2018 (Doc. 22) and, with leave of Court, filed an Amended Answer on October 2, 2019. (Doc. 29, “Am. Ans.”). Shortly thereafter, in an Order issued on October 22, 2019, Judge Román “waive[d] the Initial Pre-trial Conference and direct[ed] the parties to confer and complete a Case Management Plan and Scheduling Order....” (Doc. 30). Although Plaintiff filed a proposed discovery plan on November 19, 2019 (Doc. 32), Defendants filed a letter the following day to request both an extension of time within which to submit a proposed discovery schedule and a pre-motion conference to discuss an anticipated motion for summary judgment on the sole issue of administrative exhaustion (Doc. 31). There was no further activity on the docket in this case until it was reassigned to this Court in April 2020. 1 On April 13, 2020, the Court granted Defendants’ request, set a briefing schedule for the extant summary judgment motion, and directed Defendants to mail a copy of that Order to Plaintiff; Defendants filed an affidavit of service the same day. (Doc. 33; Doc. 34). Approximately one month later, on May 6, 2020, Defendants filed a letter requesting an extension of the briefing schedule. (Doc. 36). In that letter, Defendants noted also that upon “conferr[ing] with the New York State Division of Parole,” they had learned that Plaintiff had been released from custody and was believed to be residing at an address in New York, New York. (Id.). In an endorsement dated May 7, 2020, the Court granted Defendants’ request to extend the briefing schedule and directed Defendants to serve a copy of that Order on Plaintiff; Defendants filed an affidavit of service the next day indicating that the Order had been mailed to Plaintiff's address in New York City. (Doc. 37; Doc. 38). *2 Defendants filed their motion for summary judgment on June 15, 2020. (Doc. 39; Doc. 40, “Def. Br.”). On July 23, 2020, Defendants filed a letter noting that Plaintiff's time to oppose the pending motion had passed and requesting that the Court consider the motion unopposed. (Doc. 44). The Court endorsed the letter on July 24, 2020, extended Plaintiff's time to file an opposition to August 24, 2020 sua sponte, and advised that “[i]f plaintiff fails to file his opposition by August 24, 2020, the motion will be deemed fully submitted and unopposed.” (Doc. 45). The Court also instructed Defendants to serve a copy of that Order on Plaintiffs (id.); Defendants filed an affidavit of service that reflected mailings to both Fishkill and the address in New York City shortly thereafter. (Doc. 46). The Court has received no communications from Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 140 of 300
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Plaintiff since November 2019 and, as such, considers the motion fully submitted and unopposed. For the reasons set forth below, Defendants’ motion for summary judgment is GRANTED. BACKGROUND The facts, as recited below, are taken from the Complaint, Defendants’ Local Civil Rule 56.1 Statement (Doc. 42, “56.1 Stmt.”), and the admissible evidence submitted by the parties. 2 I. The Underlying Incident Plaintiff's factual allegations, in toto, are as follows: After an arguement [sic] with C.O. Jackson in the messhall[,] I was taken to the bridge area where the defendants beat me into a seizure, then fabricated a misbehavior report to justify their actions. (Compl. at 4). Plaintiff maintains that this incident occurred on June 4, 2015. (Id.). II. Plaintiff's Grievance Plaintiff filed the Grievance on June 17, 2015. (Quick Aff. ¶ 9; Quick Ex. B). Therein, Plaintiff complained that as he “was walking out [of] the messhall” on June 4, 2015, “C.O. Ms. Jackson and ... other[s] ... beat me down....” (Quick Ex. B). On August 14, 2015, following an investigation into Plaintiff's complaint, the Sing Sing Superintendent issued a written decision denying the Grievance. (Quick Aff. ¶ 11; Quick Ex. C). In full, the Superintendent's written decision reads as follows: Grievant claims staff harassment. The grievant was interviewed by a supervisor. The grievant had nothing further to add to his original complaint and provided no witnesses. Staff involved were interviewed and provided a written report denying the allegations of wrongdoing or harassing the grievant. Based on the investigation conducted, insufficient evidence could be found to substantiate the grievant [sic] allegations. Grievance is denied. (Quick Ex. C). The Superintendent's decision advised that Plaintiff had seven days to appeal the determination to CORC, should he choose to do so (id.); however, there is no record that Plaintiff ever appealed to CORC (Quick Aff. ¶ 12; Seguin Aff. ¶¶ 6-7; Seguin Ex. B). STANDARD OF REVIEW *3 Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Liverpool v. Davis, 442 F. Supp. 3d 714, 722 (S.D.N.Y. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “ ‘Factual disputes that are irrelevant or unnecessary’ are not material and thus cannot preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-5486, 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). The Court's duty, when determining whether summary judgment is appropriate, is “not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Id. (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed, the Court's function is not to determine the truth or weigh the evidence; the task is material issue spotting, not material issue determining. Therefore, “where there is an absence of sufficient proof as to one essential element of a claim, any factual disputes with respect to other elements of the claim are immaterial....” Bellotto v. Cty. of Orange, 248 F. App'x 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir. 2006)). Claims simply cannot proceed in the absence of sufficient proof as to an essential element. “It is the movant's burden to show that no genuine factual dispute exists,” Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)), and a court must Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 141 of 300
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 “resolve all ambiguities and draw all reasonable inferences in the non-movant's favor.” Id. (citing Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003)). Once the movant has met its burden, the non-movant “must come forward with specific facts showing that there is a genuine issue for trial.” Liverpool, 442 F. Supp. 3d at 722 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The non-movant cannot defeat a summary judgment motion by relying on “mere speculation or conjecture as to the true nature of the facts....” Id. (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, “[i]f there is any evidence from which a reasonable inference could be drawn in favor of the opposing party on the issue on which summary judgment is sought, summary judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)). Should there be no genuine issue of material fact, the movant must also establish its “entitlement to judgment as a matter of law.” In re Davis New York Venture Fund Fee Litig., 805 F. App'x 79, 80 (2d Cir. 2020) (quoting FIH, LLC v. Found. Capital Partners LLC, 920 F.3d 134, 140 (2d Cir. 2019)). Stated simply, the movant must establish that the law favors the judgment sought. Gonzalez v. Rutherford Corp., 881 F. Supp. 829, 834 (E.D.N.Y. 1995) (explaining “that summary judgment is appropriate only when ... law supports the moving party”); Linares v. City of White Plains, 773 F. Supp. 559, 560 (S.D.N.Y. 1991) (summary judgment is appropriate when “the law so favors the moving party that entry of judgment in favor of the movant ... is proper”). This standard applies equally to claims for relief and affirmative defenses. Giordano v. Market Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010) (“The same standard applies whether summary judgment is granted on the merits or on an affirmative defense....”). 3 *4 The Court is, of course, mindful that “[p]ro se litigants are afforded a special solicitude,” which includes reading their filings “to raise the strongest arguments they suggest.” Mortimer v. City of New York, No. 15-CV-7186, 2018 WL 1605982, at *9 (S.D.N.Y. Mar. 29, 2018) (internal quotation marks omitted). “It is through this lens of leniency towards pro se litigants that this Court must consider a defendant's motion for summary judgment against a pro se plaintiff,” Adams v. George, No. 18-CV-2630, 2020 WL 5504472, at *5 (S.D.N.Y. Sept. 8, 2020), but the mere fact that a litigant is pro se “does not relieve the plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment,” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks omitted). Where, as here, a pro se litigant fails to oppose a motion for summary judgment, the motion may be granted as unopposed only “if: (1) the plaintiff has received adequate notice that failure to file any opposition may result in dismissal of the case; and (2) the Court is satisfied that the facts as to which there is no genuine dispute show that the moving party is entitled to judgment as a matter of law.” McNair v. Ponte, No. 17-CV-2976, 2020 WL 3402815, at *3 (S.D.N.Y. June 18, 2020) (quoting Warren v. Chem. Bank, No. 96-CV-6075, 1999 WL 1256249, at *2 (S.D.N.Y. Dec. 22, 1999)). 4 ANALYSIS The Prison Litigation Reform Act (“PLRA”) provides 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 available are exhausted.” 42 U.S.C. § 1997e(a). This provision “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes,” Hernández v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)), and it is “ ‘mandatory’: [a]n inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (citation omitted). “Moreover, the PLRA ‘requires proper exhaustion, which means using all steps that the prison grievance system holds out.’ ” Ayala-Rosario v. Westchester Cty., No. 19-CV-3052, 2020 WL 3618190, at *4 (S.D.N.Y. July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016)). This “means that ‘prisoners must complete the administrative review process in accordance with the applicable procedural rules—rules that are defined not by the PLRA, but by the prison grievance process itself.’ ” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL 1082590, at *6 (S.D.N.Y. Mar. 6, 2020) (quoting Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012)). Accordingly, the Court looks to the process available to Plaintiff. See Dinkins v. New York, No. 19-CV-08447, 2020 WL 5659554, at *6 (S.D.N.Y. Sept. 23, 2020). There are three levels of review for inmate grievances at Sing Sing. See generally Amador v. Andrews, 655 F.3d 89, 96-97 (2d Cir. 2011) (outlining the three-step process). First, a grievance is reviewed by the Inmate Grievance Resolution Committee (“IGRC”), a facility-level body consisting of Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 142 of 300
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 inmates and facility staff members. (Quick Ex. A §§ 701.4, 701.5(a)-(b); Senguin Ex. A §§ 701.4, 701.5(a)- (b)). Second, should the inmate be dissatisfied with the IGRC's determination, he may appeal that decision to the Superintendent. (Quick Ex. A § 701.5(c); Senguin Ex. A § 701.5(c)). Finally, if the Superintendent's conclusions are unfavorable, the inmate may appeal that decision to CORC. (Quick Ex. A § 701.5(d); Senguin Ex. A § 701.5(d)). However, when a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint to bypass IGRC review and proceed before the Superintendent in the first instance. (See Quick Ex. A § 701.8; Senguin Ex. A § 701.8). Both the Superintendent and CORC are required to “date stamp all” grievances or appeals forwarded to them for review (Quick Ex. A §§ 701.5(c)(3), 701.5(d)(3)(i); Senguin Ex. A §§ 701.5(c)(3), 701.5(d)(3)(i)) and require entities to maintain files “for the current calendar year plus the previous four calendar years” (Quick Ex. A § 701.6(k)(3); Senguin Ex. A § 701.6(k) (3)). *5 Quick represents, as custodian of records maintained by the IGP at Sing Sing, that grievances “are collected from the IGRC mailbox and processed” daily, in accordance with DOCCS procedures. (Quick Aff. ¶ 5). Quick's records reveal that Plaintiff filed the Grievance on June 17, 2015, that the Grievance was forwarded directly to the Superintendent as one concerning staff harassment, and that the Superintendent performed an investigation and issued a written decision denying the Grievance on August 14, 2015. (Id. ¶¶ 9-11; Quick Ex. B). However, both Quick and Seguin represent affirmatively that they have no record of Plaintiff taking the final step of appealing the Superintendent's decision to CORC. (Quick Aff. ¶12; Seguin Aff. ¶¶ 6-7). Even while granting Plaintiff—who filed nothing in opposition to this motion, and, in fact, has filed nothing in this case at all since November 2019 (see Doc. 32)—every conceivable benefit of the doubt to which a pro se litigant is entitled, there is no genuine issue of material fact on the instant motion. Consequently, summary judgment is proper here because: (1) Defendants established that Plaintiff failed to exhaust his administrative remedies and, as such, also their entitlement to summary judgment on the affirmative defense of Plaintiff's failure to exhaust his administrative remedies as required by the PLRA; and (2) Plaintiff was warned that failure to file an opposition would result in the Court concluding that the motion was unopposed. 5 CONCLUSION Based upon the foregoing, the motion for summary judgment is GRANTED. SO ORDERED. All Citations Not Reported in Fed. Supp., 2021 WL 981849 Footnotes 1 There are two docket entries reflecting reassignment of this matter from Judge Román to this Court on different dates. (See Apr. 3, 2020 Entry; Apr. 13, 2020 Entry). 2 In support of the instant motion, defense counsel filed a Declaration annexing two affidavits (with exhibits) for the Court's consideration. (Doc. 41). The first affidavit is from Quandera T. Quick (“Quick”), the Inmate Grievance Program (“IGP”) Supervisor at Sing Sing. (Doc. 41-1, “Quick Aff.” ¶ 1). This affidavit attaches as exhibits copies of: (1) New York State Department of Corrections and Community Supervision Directive (“DOCCS”) No. 4040 (id. 5-21, “Quick Ex. A”); (2) Plaintiff's June 4, 2015 Grievance (“Grievance”) (id. at 22-23, “Quick Ex. B”); and (3) the written decision issued by Michael Capra, Sing Sing's Superintendent, on August 14, 2015 (id. at 24-25, “Quick Ex. C”). The second affidavit is from Rachael Seguin (“Seguin”), the Assistant Director of the IGP for DOCCS and custodian of records for the Central Office Review Committee (“CORC”). (Doc. 41-2, “Seguin Aff.”). This affidavit attaches as exhibits copies of: (1) DOCCS Directive No. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 143 of 300
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 4040 (id. at 4-20, “Seguin Ex. A”); and (2) the results of a search for appeals filed with the CORC (id. at 21-23, “Seguin Ex. B”). 3 “[T]he failure to exhaust administrative remedies in compliance with the [Prison Litigation Reform Act] is an affirmative defense” and it “may be waived” by a defendant who fails to raise it. Banks v. Cty. of Westchester, 168 F. Supp. 3d 682, 693 n.3 (S.D.N.Y. 2016) (internal quotation marks omitted). Here, Defendants’ Fourth Affirmative Defense was failure to comply with 42 U.S.C. § 1997e. (Am. Ans. ¶ 14). 4 Given the Court's conclusion that there is no genuine issue of material fact as to exhaustion, it does not need to reach Defendants’ request for an evidentiary hearing should the Court find otherwise. 5 Even if the Court did not grant Defendants’ motion for summary judgment, it would dismiss the action with prejudice under Federal Rule of Civil Procedure 41(b) as a result of Plaintiff's failure to prosecute this action. Indeed, Plaintiff has not filed anything in this case since he filed a proposed discovery schedule more than a year ago. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 144 of 300
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2021 WL 981849 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Robert JACKSON, Plaintiff, v. C.O. Angela JACKSON, et al., Defendants. 16-CV-08516 (PMH) | Signed 03/16/2021 Attorneys and Law Firms Robert Jackson, Beacon, NY, pro se. Amanda Yoon, NYS Office of the Attorney General, New York, NY, Rebecca Lynn Johannesen, Colorado Department of Law, Denver, CO, for Defendants. MEMORANDUM OPINION AND ORDER PHILIP M. HALPERN, United States District Judge: *1 Plaintiff Robert Jackson (“Plaintiff”), proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1983 against Correction Officers Angela Jackson, M. Walker, and J. James (collectively, “Defendants”). (Doc. 2, “Compl.”). Specifically, Plaintiff alleges that in June 2015 —while incarcerated at Sing Sing Correctional Facility in Ossining, New York (“Sing Sing”)—Defendants violated his constitutional rights by: (1) using excessive force against him, in violation of the Eighth Amendment; and (2) filing a false internal complaint against him, in violation of the Fourteenth Amendment. (See generally id.). On July 10, 2017, Defendants moved under Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's due process claim along with all claims for monetary damages against them in their official capacities. (Doc. 16). By Opinion & Order dated April 20, 2018, Judge Román granted Defendants’ motion and granted Plaintiff leave “to file an Amended Complaint ... on or before June 19, 2018.” (Doc. 19 at 8). Despite securing an extension of the time within which to file his amended pleading, Plaintiff failed to do so. Consequently, the only claim remaining in this action is one for excessive force against Defendants in their individual capacities. Defendants filed an Answer on August 30, 2018 (Doc. 22) and, with leave of Court, filed an Amended Answer on October 2, 2019. (Doc. 29, “Am. Ans.”). Shortly thereafter, in an Order issued on October 22, 2019, Judge Román “waive[d] the Initial Pre-trial Conference and direct[ed] the parties to confer and complete a Case Management Plan and Scheduling Order....” (Doc. 30). Although Plaintiff filed a proposed discovery plan on November 19, 2019 (Doc. 32), Defendants filed a letter the following day to request both an extension of time within which to submit a proposed discovery schedule and a pre-motion conference to discuss an anticipated motion for summary judgment on the sole issue of administrative exhaustion (Doc. 31). There was no further activity on the docket in this case until it was reassigned to this Court in April 2020. 1 On April 13, 2020, the Court granted Defendants’ request, set a briefing schedule for the extant summary judgment motion, and directed Defendants to mail a copy of that Order to Plaintiff; Defendants filed an affidavit of service the same day. (Doc. 33; Doc. 34). Approximately one month later, on May 6, 2020, Defendants filed a letter requesting an extension of the briefing schedule. (Doc. 36). In that letter, Defendants noted also that upon “conferr[ing] with the New York State Division of Parole,” they had learned that Plaintiff had been released from custody and was believed to be residing at an address in New York, New York. (Id.). In an endorsement dated May 7, 2020, the Court granted Defendants’ request to extend the briefing schedule and directed Defendants to serve a copy of that Order on Plaintiff; Defendants filed an affidavit of service the next day indicating that the Order had been mailed to Plaintiff's address in New York City. (Doc. 37; Doc. 38). *2 Defendants filed their motion for summary judgment on June 15, 2020. (Doc. 39; Doc. 40, “Def. Br.”). On July 23, 2020, Defendants filed a letter noting that Plaintiff's time to oppose the pending motion had passed and requesting that the Court consider the motion unopposed. (Doc. 44). The Court endorsed the letter on July 24, 2020, extended Plaintiff's time to file an opposition to August 24, 2020 sua sponte, and advised that “[i]f plaintiff fails to file his opposition by August 24, 2020, the motion will be deemed fully submitted and unopposed.” (Doc. 45). The Court also instructed Defendants to serve a copy of that Order on Plaintiffs (id.); Defendants filed an affidavit of service that reflected mailings to both Fishkill and the address in New York City shortly thereafter. (Doc. 46). The Court has received no communications from Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 145 of 300
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 Plaintiff since November 2019 and, as such, considers the motion fully submitted and unopposed. For the reasons set forth below, Defendants’ motion for summary judgment is GRANTED. BACKGROUND The facts, as recited below, are taken from the Complaint, Defendants’ Local Civil Rule 56.1 Statement (Doc. 42, “56.1 Stmt.”), and the admissible evidence submitted by the parties. 2 I. The Underlying Incident Plaintiff's factual allegations, in toto, are as follows: After an arguement [sic] with C.O. Jackson in the messhall[,] I was taken to the bridge area where the defendants beat me into a seizure, then fabricated a misbehavior report to justify their actions. (Compl. at 4). Plaintiff maintains that this incident occurred on June 4, 2015. (Id.). II. Plaintiff's Grievance Plaintiff filed the Grievance on June 17, 2015. (Quick Aff. ¶ 9; Quick Ex. B). Therein, Plaintiff complained that as he “was walking out [of] the messhall” on June 4, 2015, “C.O. Ms. Jackson and ... other[s] ... beat me down....” (Quick Ex. B). On August 14, 2015, following an investigation into Plaintiff's complaint, the Sing Sing Superintendent issued a written decision denying the Grievance. (Quick Aff. ¶ 11; Quick Ex. C). In full, the Superintendent's written decision reads as follows: Grievant claims staff harassment. The grievant was interviewed by a supervisor. The grievant had nothing further to add to his original complaint and provided no witnesses. Staff involved were interviewed and provided a written report denying the allegations of wrongdoing or harassing the grievant. Based on the investigation conducted, insufficient evidence could be found to substantiate the grievant [sic] allegations. Grievance is denied. (Quick Ex. C). The Superintendent's decision advised that Plaintiff had seven days to appeal the determination to CORC, should he choose to do so (id.); however, there is no record that Plaintiff ever appealed to CORC (Quick Aff. ¶ 12; Seguin Aff. ¶¶ 6-7; Seguin Ex. B). STANDARD OF REVIEW *3 Pursuant to Federal Rule of Civil Procedure 56, a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A fact is ‘material’ if it ‘might affect the outcome of the suit under the governing law,’ and is genuinely in dispute ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Liverpool v. Davis, 442 F. Supp. 3d 714, 722 (S.D.N.Y. 2020) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “ ‘Factual disputes that are irrelevant or unnecessary’ are not material and thus cannot preclude summary judgment.” Sood v. Rampersaud, No. 12-CV-5486, 2013 WL 1681261, at *1 (S.D.N.Y. Apr. 17, 2013) (quoting Anderson, 477 U.S. at 248). The Court's duty, when determining whether summary judgment is appropriate, is “not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Id. (quoting Wilson v. Nw. Mut. Ins. Co., 625 F.3d 54, 60 (2d Cir. 2010)). Indeed, the Court's function is not to determine the truth or weigh the evidence; the task is material issue spotting, not material issue determining. Therefore, “where there is an absence of sufficient proof as to one essential element of a claim, any factual disputes with respect to other elements of the claim are immaterial....” Bellotto v. Cty. of Orange, 248 F. App'x 232, 234 (2d Cir. 2007) (quoting Salahuddin v. Goord, 467 F.3d 263, 281 (2d Cir. 2006)). Claims simply cannot proceed in the absence of sufficient proof as to an essential element. “It is the movant's burden to show that no genuine factual dispute exists,” Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)), and a court must Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 146 of 300
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 “resolve all ambiguities and draw all reasonable inferences in the non-movant's favor.” Id. (citing Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003)). Once the movant has met its burden, the non-movant “must come forward with specific facts showing that there is a genuine issue for trial.” Liverpool, 442 F. Supp. 3d at 722 (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). The non-movant cannot defeat a summary judgment motion by relying on “mere speculation or conjecture as to the true nature of the facts....” Id. (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)). However, “[i]f there is any evidence from which a reasonable inference could be drawn in favor of the opposing party on the issue on which summary judgment is sought, summary judgment is improper.” Sood, 2013 WL 1681261, at *2 (citing Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004)). Should there be no genuine issue of material fact, the movant must also establish its “entitlement to judgment as a matter of law.” In re Davis New York Venture Fund Fee Litig., 805 F. App'x 79, 80 (2d Cir. 2020) (quoting FIH, LLC v. Found. Capital Partners LLC, 920 F.3d 134, 140 (2d Cir. 2019)). Stated simply, the movant must establish that the law favors the judgment sought. Gonzalez v. Rutherford Corp., 881 F. Supp. 829, 834 (E.D.N.Y. 1995) (explaining “that summary judgment is appropriate only when ... law supports the moving party”); Linares v. City of White Plains, 773 F. Supp. 559, 560 (S.D.N.Y. 1991) (summary judgment is appropriate when “the law so favors the moving party that entry of judgment in favor of the movant ... is proper”). This standard applies equally to claims for relief and affirmative defenses. Giordano v. Market Am., Inc., 599 F.3d 87, 93 (2d Cir. 2010) (“The same standard applies whether summary judgment is granted on the merits or on an affirmative defense....”). 3 *4 The Court is, of course, mindful that “[p]ro se litigants are afforded a special solicitude,” which includes reading their filings “to raise the strongest arguments they suggest.” Mortimer v. City of New York, No. 15-CV-7186, 2018 WL 1605982, at *9 (S.D.N.Y. Mar. 29, 2018) (internal quotation marks omitted). “It is through this lens of leniency towards pro se litigants that this Court must consider a defendant's motion for summary judgment against a pro se plaintiff,” Adams v. George, No. 18-CV-2630, 2020 WL 5504472, at *5 (S.D.N.Y. Sept. 8, 2020), but the mere fact that a litigant is pro se “does not relieve the plaintiff of his duty to meet the requirements necessary to defeat a motion for summary judgment,” Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003) (internal quotation marks omitted). Where, as here, a pro se litigant fails to oppose a motion for summary judgment, the motion may be granted as unopposed only “if: (1) the plaintiff has received adequate notice that failure to file any opposition may result in dismissal of the case; and (2) the Court is satisfied that the facts as to which there is no genuine dispute show that the moving party is entitled to judgment as a matter of law.” McNair v. Ponte, No. 17-CV-2976, 2020 WL 3402815, at *3 (S.D.N.Y. June 18, 2020) (quoting Warren v. Chem. Bank, No. 96-CV-6075, 1999 WL 1256249, at *2 (S.D.N.Y. Dec. 22, 1999)). 4 ANALYSIS The Prison Litigation Reform Act (“PLRA”) provides 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 available are exhausted.” 42 U.S.C. § 1997e(a). This provision “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes,” Hernández v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009) (quoting Porter v. Nussle, 534 U.S. 516, 532 (2002)), and it is “ ‘mandatory’: [a]n inmate ‘shall’ bring ‘no action’ (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (citation omitted). “Moreover, the PLRA ‘requires proper exhaustion, which means using all steps that the prison grievance system holds out.’ ” Ayala-Rosario v. Westchester Cty., No. 19-CV-3052, 2020 WL 3618190, at *4 (S.D.N.Y. July 2, 2020) (quoting Williams v. Priatno, 829 F.3d 118, 122 (2d Cir. 2016)). This “means that ‘prisoners must complete the administrative review process in accordance with the applicable procedural rules—rules that are defined not by the PLRA, but by the prison grievance process itself.’ ” Gottesfeld v. Anderson, No. 18-CV-10836, 2020 WL 1082590, at *6 (S.D.N.Y. Mar. 6, 2020) (quoting Johnson v. Killian, 680 F.3d 234, 238 (2d Cir. 2012)). Accordingly, the Court looks to the process available to Plaintiff. See Dinkins v. New York, No. 19-CV-08447, 2020 WL 5659554, at *6 (S.D.N.Y. Sept. 23, 2020). There are three levels of review for inmate grievances at Sing Sing. See generally Amador v. Andrews, 655 F.3d 89, 96-97 (2d Cir. 2011) (outlining the three-step process). First, a grievance is reviewed by the Inmate Grievance Resolution Committee (“IGRC”), a facility-level body consisting of Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 147 of 300
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 inmates and facility staff members. (Quick Ex. A §§ 701.4, 701.5(a)-(b); Senguin Ex. A §§ 701.4, 701.5(a)- (b)). Second, should the inmate be dissatisfied with the IGRC's determination, he may appeal that decision to the Superintendent. (Quick Ex. A § 701.5(c); Senguin Ex. A § 701.5(c)). Finally, if the Superintendent's conclusions are unfavorable, the inmate may appeal that decision to CORC. (Quick Ex. A § 701.5(d); Senguin Ex. A § 701.5(d)). However, when a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint to bypass IGRC review and proceed before the Superintendent in the first instance. (See Quick Ex. A § 701.8; Senguin Ex. A § 701.8). Both the Superintendent and CORC are required to “date stamp all” grievances or appeals forwarded to them for review (Quick Ex. A §§ 701.5(c)(3), 701.5(d)(3)(i); Senguin Ex. A §§ 701.5(c)(3), 701.5(d)(3)(i)) and require entities to maintain files “for the current calendar year plus the previous four calendar years” (Quick Ex. A § 701.6(k)(3); Senguin Ex. A § 701.6(k) (3)). *5 Quick represents, as custodian of records maintained by the IGP at Sing Sing, that grievances “are collected from the IGRC mailbox and processed” daily, in accordance with DOCCS procedures. (Quick Aff. ¶ 5). Quick's records reveal that Plaintiff filed the Grievance on June 17, 2015, that the Grievance was forwarded directly to the Superintendent as one concerning staff harassment, and that the Superintendent performed an investigation and issued a written decision denying the Grievance on August 14, 2015. (Id. ¶¶ 9-11; Quick Ex. B). However, both Quick and Seguin represent affirmatively that they have no record of Plaintiff taking the final step of appealing the Superintendent's decision to CORC. (Quick Aff. ¶12; Seguin Aff. ¶¶ 6-7). Even while granting Plaintiff—who filed nothing in opposition to this motion, and, in fact, has filed nothing in this case at all since November 2019 (see Doc. 32)—every conceivable benefit of the doubt to which a pro se litigant is entitled, there is no genuine issue of material fact on the instant motion. Consequently, summary judgment is proper here because: (1) Defendants established that Plaintiff failed to exhaust his administrative remedies and, as such, also their entitlement to summary judgment on the affirmative defense of Plaintiff's failure to exhaust his administrative remedies as required by the PLRA; and (2) Plaintiff was warned that failure to file an opposition would result in the Court concluding that the motion was unopposed. 5 CONCLUSION Based upon the foregoing, the motion for summary judgment is GRANTED. SO ORDERED. All Citations Not Reported in Fed. Supp., 2021 WL 981849 Footnotes 1 There are two docket entries reflecting reassignment of this matter from Judge Román to this Court on different dates. (See Apr. 3, 2020 Entry; Apr. 13, 2020 Entry). 2 In support of the instant motion, defense counsel filed a Declaration annexing two affidavits (with exhibits) for the Court's consideration. (Doc. 41). The first affidavit is from Quandera T. Quick (“Quick”), the Inmate Grievance Program (“IGP”) Supervisor at Sing Sing. (Doc. 41-1, “Quick Aff.” ¶ 1). This affidavit attaches as exhibits copies of: (1) New York State Department of Corrections and Community Supervision Directive (“DOCCS”) No. 4040 (id. 5-21, “Quick Ex. A”); (2) Plaintiff's June 4, 2015 Grievance (“Grievance”) (id. at 22-23, “Quick Ex. B”); and (3) the written decision issued by Michael Capra, Sing Sing's Superintendent, on August 14, 2015 (id. at 24-25, “Quick Ex. C”). The second affidavit is from Rachael Seguin (“Seguin”), the Assistant Director of the IGP for DOCCS and custodian of records for the Central Office Review Committee (“CORC”). (Doc. 41-2, “Seguin Aff.”). This affidavit attaches as exhibits copies of: (1) DOCCS Directive No. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 148 of 300
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 4040 (id. at 4-20, “Seguin Ex. A”); and (2) the results of a search for appeals filed with the CORC (id. at 21-23, “Seguin Ex. B”). 3 “[T]he failure to exhaust administrative remedies in compliance with the [Prison Litigation Reform Act] is an affirmative defense” and it “may be waived” by a defendant who fails to raise it. Banks v. Cty. of Westchester, 168 F. Supp. 3d 682, 693 n.3 (S.D.N.Y. 2016) (internal quotation marks omitted). Here, Defendants’ Fourth Affirmative Defense was failure to comply with 42 U.S.C. § 1997e. (Am. Ans. ¶ 14). 4 Given the Court's conclusion that there is no genuine issue of material fact as to exhaustion, it does not need to reach Defendants’ request for an evidentiary hearing should the Court find otherwise. 5 Even if the Court did not grant Defendants’ motion for summary judgment, it would dismiss the action with prejudice under Federal Rule of Civil Procedure 41(b) as a result of Plaintiff's failure to prosecute this action. Indeed, Plaintiff has not filed anything in this case since he filed a proposed discovery schedule more than a year ago. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 149 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 1033787 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Craig A. JACKSON, Plaintiff, v. Sergeant WEST, et al., Defendants. No. 9:23-CV-0306 (LEK/PJE) | Signed February 20, 2025 Attorneys and Law Firms Craig A. Jackson, 22-B-0406, Cayuga Correctional Facility, P.O. Box 1186, Moravia, New York 13118, Plaintiff pro se. ALEXANDRA L. GALUS, ESQ., LAUREN R. ROSENBERG, ESQ., NYS Office of the Attorney General State Capitol, Albany, New York 12224, Attorneys for defendants. REPORT-RECOMMENDATION AND ORDER PAUL J. EVANGELISTA, UNITED STATES MAGISTRATE JUDGE *1 Plaintiff pro se Craig A. Jackson (“plaintiff”), an inmate who was, at all relevant times, in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Sergeant West and D. Fenlong (“defendants”) violated his constitutional rights under the Eighth Amendment. See Dkt. No. 1 (“Compl.”). Presently before the Court is defendants’ motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). See Dkt. No. 26. Plaintiff did not oppose. For the following reasons, it is recommended that defendants’ motion be granted. I. Background 1 On a motion for summary judgment, the facts are related in the light most favorable to the nonmoving party. See Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (“In assessing the record ... to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought.”). On June 13, 2024, the Court served upon plaintiff forms titled, “Notice of Due Date to Respond to Motion for Summary Judgment” and “Notification of the Consequences of Failing to Respond to a Summary Judgment Motion. Dkt. No. 27. These forms advise plaintiff of his deadline to respond to defendants’ motion and advise him that if he “do[es] not submit a proper response to the defendants’ statement of material facts, the Court may deem [plaintiff] to have admitted the defendants’ factual statements.” Dkt. No. 27 at 1-2; see also N.D.N.Y. L.R. 56.1(b). Plaintiff did not respond to defendants’ Statement of Material Facts. In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable factual inferences in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). Where a non- movant does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's statement of material facts; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003). Therefore, the Court will, for purposes of this motion, deem as true all properly-supported facts stated in defendants’ Statement of Material Facts. See Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (accepting as true the material facts contained in unopposed statement of material facts); see also Demuth v. Cutting, No. 9:18-CV-789 (LEK/TWD), 2020 WL 957381, at *1 (N.D.N.Y. Feb. 3, 2020), report and recommendation adopted, No. 9:18-CV-0789 (LEK/TWD), 2020 WL 950229 (N.D.N.Y. Feb. 27, 2020) (“Plaintiff's failure to oppose Defendant's motion results in the admission of properly supported facts, however the Court must still ensure those facts show Defendant is entitled to judgment as a matter of law.”). A. Facts *2 Defendants provide that plaintiff was housed at Gouverneur from April 11, 2022, to June 13, 2022. See Dkt. No. 26-2 at 2. Gouverneur had a fully-functioning inmate grievance program during plaintiff's period of incarceration. See id. (citing Dkt. No. 26-4 at ¶11). Plaintiff's claims are Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 150 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 proper subjects for a grievance under 7 NYCRR § 701.1, et seq. See Dkt. No. 26-2 at 2. Plaintiff filed four grievances, from April 12, 2022, through April 17, 2022, alleging that defendants West and Fenlong assaulted him on April 11, 2022. See id. (citing Dkt. No. 26-4 at ¶14). The four grievances were consolidated into Grievance No. GOV-0087022. See id. Due to the nature of the grievance, it was forwarded to the Superintendent. See id. at 3. On May 5, 2022, the Superintendent issued a determination denying plaintiff's grievance. See id. at 3 (citing Dkt. No. 26-4 at ¶28). Defendants contend that plaintiff did not appeal the grievance denial to CORC. See id. (citing Dkt. No. 26-4 at ¶13). II. Legal Standards Fed. R. Civ. P. 56 instructs courts to grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes that are irrelevant or unnecessary” will not preclude summary judgment, summary judgment cannot be granted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.”). The party seeking summary judgment bears the burden of informing a court of the basis for its motion and identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has met its initial burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts” to defeat summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party may not rely on “mere conclusory allegations, speculation, or conjecture,” Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir. 2020), and must present more than a mere “scintilla of evidence” to support its claims, Anderson, 477 U.S. at 252. At the same time, a court must resolve all ambiguities and draw all inferences in favor of the nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S 133, 150 (2000). The Court “may not make any credibility determinations or weigh the evidence.” Id. Thus, a court's duty in reviewing a motion for summary judgment is “carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Where, as here, a plaintiff proceeds pro se, the court must grant him “special solicitude,” construe his submissions “liberally,” and read such submissions “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks omitted) (citing Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)). This is because “a pro se litigant generally lacks both legal training and experience and, accordingly, is likely to forfeit important rights through inadvertence if [ ] not afforded some degree of protection.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (citing Triestman, 470 F.3d at 475). *3 However, the Second Circuit has cautioned district courts that they “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.” Triestman, 470 F.3d at 477 (citations omitted). Further, the “special solicitude” standard does not excuse “frivolous or vexatious filings by pro se litigants,” nor does it “exempt a party from compliance with relevant rules of procedural and substantive law.” Id. III. Discussion A. Argument Defendants argue that this case must be dismissed because plaintiff did not exhaust his administrative remedies prior to commencing this action because he did not appeal the Superintendent's denial of his grievance to CORC. See Dkt. No. 26-1 at 5. Although plaintiff does not oppose this motion, in his deposition, he contended that he appealed the Superintendent's denial to CORC but did not receive a response. See Dkt. No. 26-5 at 92-93. B. Analysis Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 151 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 1. Exhaustion Standards 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. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”). 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 v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required even where the prisoner seeks relief not available in the administrative grievance process, such as money damages. See 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 is incarcerated.” Adams v. Annucci, 537 F. Supp. 3d 475, 477-78 (W.D.N.Y. 2021); see Jones v. Bock, 549 U.S. 199, 218 (2007). “In accordance with the PLRA ... [DOCCS] has made available a well-established inmate grievance program ... [which] involves [ ] following [a] three-step procedure for the filing of grievances.” Smith v. Kelly, 985 F. Supp. 2d 275, 280 (N.D.N.Y. 2013) (citing 7 N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7). “Exhaustion is mandatory—unexhausted claims may not be pursued in federal court.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011). Nonetheless, “the defendants have the burden of proving that [the plaintiff's] claim has not been exhausted[.]” Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (citations omitted). A defendant satisfies this burden by “establishing ... that a grievance process exists” and that the plaintiff failed to use the grievance procedure. Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (citing Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003), and Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999)). “[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (quotation marks and citations omitted). “[O]nce a defendant has produced reliable evidence that such remedies were generally available, and the plaintiff nevertheless failed to exhaust those remedies, the plaintiff must then counter the defendant's proof by showing that, as to him or her, the remedy was unavailable.” Coleman v. Nolan, No. 9:15-CV-40 (ATB), 2018 WL 4732778, at *4 (N.D.N.Y. Oct. 2, 2018) (citing Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y. 2013)). Availability means “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’ ” Ross v. Blake, 578 U.S. 632, 642 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). “An inmate ... must exhaust available remedies, but need not exhaust unavailable ones.” Id. *4 There are “three kinds of circumstances in which an administrative remedy ... is not capable of use to obtain relief.” Ross, 578 U.S. at 643. 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. (citing Booth, 532 U.S. at 736). “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Lastly, administrative remedies are unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 644. 2. Declarations & Plaintiff's Deposition Testimony Defendants submit a declaration from Laura Hutchins, the Incarcerated Grievance Program Supervisor at Gouverneur Correctional Facility. See Dkt. No. 25-3. Ms. Hutchins declared that plaintiff successfully completed “shop facility orientation” on May 16, 2022, through May 22, 2022, during which time he was given a presentation on how to file and exhaust grievances. See Dkt. No. 26-3 at 2, 9. Ms. Hutchins located records of plaintiff having filed four grievances in April 2022, regarding a staff assault on April 11, 2022, and that these grievances were consolidated into Grievance No. GOV-0087-22. See id. at 6. Gouverneur's records further reveal that the Superintendent denied plaintiff's consolidated grievance on May 5, 2022. See Dkt. No. 26-3 at 6 (citing Dkt. No. 26-3 at 16). The denial form advised plaintiff that “[i]f you wish to appeal the above decision of the Superintendent, please sign below and return this copy to the IGRC at the facility where the grievance was filed. You have seven (7) calendar days from the receipt of this notice to file your appeal. Please provide a reason why Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 152 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 you are appealing this decision to CORC.” Id. Ms. Hutchins declared that Gouverneur's records further show that plaintiff never appealed the Superintendent's denial of his consolidated grievance. See Dkt. No. 26-3 at 9. Defendants further submit a declaration from Rachael Seguin, Director of the Incarcerated Grievance Program for DOCCS. See Dkt. No. 26-4 at 1. Ms. Seguin declares that DOCCS Directive 4040 provides that DOCCS must “maintain grievance files for the current calendar year and the previous four calendar years,” that DOCCS maintains such files, and that “she searched DOCCS records for any appeals received by CORC relating to plaintiff's instant allegation.” Dkt. No. 26-4 at 4. The records revealed that plaintiff “has not appealed any grievances to CORC pertaining to allegations of Eighth Amendment violations against Defendants Fenlong and West, while Plaintiff was housed at Gouverneur C.F. in DOCCS custody under DIN: 22-B-0405.” Id. Defendants note that plaintiff testified at his deposition that he “ ‘filed the appeal at Gouverneur in May, like two days after’ he received the determination.” Dkt. No. 26-1 at 9. Defendants contend that this assertion is incorrect because DOCCS and Gouverneur records show that plaintiff never appealed the Superintendent's denial. See id. Defendants anticipate a potential argument, based on statements plaintiff made in his deposition, of the existence of “some type of conspiracy on behalf of the facility to hide or destroy his paperwork,” but contend that “such allegations are conclusory and are not sufficient to defeat a motion for summary judgment.” Id. Thus, defendants argue that this matter must be dismissed for plaintiff's failure to exhaust his administrative remedies before commencing this action. As plaintiff has not responded to the motion for summary judgment, the Court does not have before it any of plaintiff's positions regarding exhaustion. Out of special solicitude to plaintiff and in an attempt to view the facts in the light most favorable to the nonmoving party, the undersigned has searched the record for potential arguments regarding exhaustion. In his deposition, when asked if he “understand[s] what the grievance process is at ... the DOCCS facility,” plaintiff acknowledged that he attended an orientation about grievances and stated that he “somewhat” understood the process. Dkt. No. 26-5 at 79. Plaintiff testified that his understanding of the grievance process is that he needs to “follow the necessary steps. I have to follow these specific steps.” Id. He states, “what I can do is I can bring it to the officer's attention.... If that don't work, maybe speak to a sergeant or something like that. If that don't get nowhere, I write a grievance.” Id. at 79. When plaintiff was asked how he knew to file a grievance, plaintiff stated, “This isn't my first time in jail. I just – you know, I – I—and these grievances that I've written, these are the first grievances I ever written in my whole life. I just – I just knew that, you know what I mean, I had to report it.” Id. at 80. When asked further how he knew how to file a grievance, plaintiff responded, “I mean, I had a bunkie in the box. I just wrote out – it wasn't no specific thing. I just – I just took a piece of paper and just wrote down what happened and sent it – and sent it to grievance.” Id. at 81. When the AAG asked how he knew where to send the grievance, plaintiff testified, *5 it's no specific place. I was in the box. It's no specific place you have to send a grievance. You just slide it underneath your door. They come and get the mail. It is not like, no, I could go and put this in a grievance box. No, we're locked in already. We're in a box. Id. The AAG inquired about the grievance orientation plaintiff attended, to which plaintiff stated, “I am not sure about that, man. I am not even going to even – I – I can't answer it.” Dkt. No. 26-5 at 81-82. Plaintiff testified that he filed “like five” grievances with respect to the issues underlying this action. Id. at 82. When asked if he heard back about his grievances, plaintiff testified, “I received a letter in the mail ... facility mail, stating me that -- it was stating that it would – they had shut it down. They – they – they shut down my grievance. It wasn't accepted.” Id. at 83. In response to the AAG's question whether he heard back from the grievance office about his grievances, plaintiff testified, “yes.” Id. at 83. Plaintiff acknowledged the Superintendent's denial and stated that he understood the denial to mean, “it wasn't going to be nothing that was done about the incident and that it was going to be swept under the rug.” Id. at 84. He further testified that he understood the Superintendent's denial to mean that “it wasn't found valid. It was – it was shut down. It wasn't going through.... Basically, ... it's denied.” Id. at 92. Plaintiff testified that he “filed the appeal at Gouverneur in May, like two days after I got – right after I got that paper in the mail, right, I filed – I filed my appeal for it.” Dkt. No. 26-5 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 153 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 at 92. He states he did not receive a response to his appeal of the Superintendent's decision. See id. at 92-93. When asked if it was his “understanding that the appeal you filed was going to go to CORC,” plaintiff testified that he “didn't know where it was going.” Id. He testified affirmatively that he filled out the bottom portion of the Superintendent's denial form and sent it in. See id. at 93. When plaintiff did not hear back on his appeal of the Superintendent's denial, he did not file another grievance or follow up with any kind of request to the grievance office. See id. at 94. When asked why he did not follow up, plaintiff stated, “I was still in that facility right there. And a lot of the paperwork, a lot of stuff, it was all against me over there. You get what I'm saying. I really didn't have a – like I said, I put in five grievances. You showed me four. I'm missing a grievance. You get what I'm saying?” Id. at 94-95. Plaintiff contended that he was “refused medical over there. I did not feel safe over there. Any type of paperwork that I do have and that I was able to escape with out of that facility, like I'm blessed to have it. Like I – I – I didn't have no control.” Id. When questioned about how he filed the appeal of his grievance denial, plaintiff testified that he “had another fellow peer help me out in here because I'm – I'm really not law library savvy like that. So I actually paid somebody to help me put this whole thing together ... [s]o I could get the help that I need because I – I – like I said, I've never been involved in this type of stuff before .... I don't know what I am doing .... I told my story to a couple guys ... and they helped me to get this far. And I -- I'm struggling here, man.” Dkt. No. 26-5 at 96. *6 Plaintiff testified that, to file his appeal of the Superintendent's denial, he went to the law library with another inmate who “basically did everything. I signed it and – and we sent it out.” Dkt. No. 26-5 at 97. Plaintiff testified that he sent his appeal to “Albany – it went to this same address that I get all this mail from. It went to office of the attorney – it went to you.” Id. When asked to clarify if plaintiff was stating that he sent his appeal of the Superintendent's decision to the Attorney General's Office, plaintiff stated, “It went to the – all that – that's all in the same building in Albany, right? The Attorney General's office and everything is in Albany, two twenty – I believe it's two twenty.” Id. at 97. When confronted with the fact that the Superintendent's denial of his grievance contained instructions stating that any appeal of the Superintendent's decision is to be sent to the Inmate Grievance Resolution Committee (“IGRC”) at the facility where the grievance is filed, but that he testified he sent it to the Attorney General's Office, plaintiff stated that he was “not even sure” where he sent it. Dkt. No. 26-5 at 97. He stated that he is “pretty sure I sent it to the grievance. I am not sure where it went, man. I know I sent it out. I did every little piece of paperwork I was supposed to do.” Id. at 98-99. When asked whether he was “fearful that your grievance somehow wouldn't be listened to at that facility, plaintiff replied “Grievance? I was – was more fearful for my life.” Id. at 99. Plaintiff testified that when he was transferred out of Gouverneur to Cayuga, he did not follow up with the grievance office at Cayuga or attempt to pursue his grievance further. See Dkt. No. 26-5 at 95. Plaintiff testified that he “didn't know I had to” as he already filed five grievances at Gouverneur and “they shut it down.” Id. at 95. “I put the appeal in. I didn't hear nothing about the appeal.” Id. He says when he was transferred to Cayuga, he also did not hear anything about his appeal. See id. Plaintiff then testified that he did not attempt to seek the status of his grievance once he was transferred to Cayuga because he “was happy to get out of that facility .... it's a whole different environment in the facility I am in now than Gouverneur. You could – you could feel the fear over there.” Id. at 100. Plaintiff testified that once he was transferred to Cayuga, “I could start fresh and then go about my business, do my time, and get home. I wasn't really like – I didn't want the whole state against me, man. I didn't want to leave one jail and then go to another jail and I got the police all over me there neither. So I wanted to like kind of fly under the radar.” Id. at 101. Plaintiff states that upon transfer to Cayuga, he did not complete another orientation about the grievance procedure. See Dkt. No. 26-5 at 102. As he had completed a full orientation at Gouverneur, “the grievance thing was not discussed” at Cayuga; he underwent a more streamlined orientation. Id. When asked whether the original orientation at Gouverneur covered grievances, plaintiff then testified, “I'm not sure about all that, man. I – that's not something that I am paying attention to, man. I came to jail to do my time, man. Not write grievances, man. You get what I'm saying? That's – that's – that's just what it boils down to.” Id. at 102. When asked to clarify whether he was testifying that he never attended an orientation that went over the grievance process, plaintiff again stated, “I'm not sure, man. I – maybe don't be paying attention to a lot of shit. If it – if it don't – if it don't affect me or something like that, I'm just not paying attention to everything. I have a short attention span on certain things.” Id. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 154 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Plaintiff testified that once he was transferred to Cayuga, he was in general population, but when asked whether plaintiff could have “stopped by the grievance office at any point in time,” he testified, “I mean, yeah. Yes, I guess. I'm not even sure if we even have a grievance building here at all.” Dkt. No. 26-5 at 105. Plaintiff further testified that while at Cayuga, he was not “intimidated all,” “assaulted at all,” or “in fear for [his] life at all,” by Cayuga staff. Id. 3. Exhaustion of Administrative Remedies Here, the record is clear that plaintiff did not exhaust his administrative remedies before commencing this action. Although plaintiff testified that he appealed the Superintendent's denial of his grievance with help from a fellow inmate, he testified that was unsure if he sent the appeal to the IGRC or to the Attorney General's Office or another agency in Albany. The Court has before it no proof of his alleged appeal. *7 Plaintiff's testimony on exhaustion is littered with contradictions and lacks support. Plaintiff testified that he never received a response to his appeal, but did not follow up while he was at Gouverneur or Cayuga. Plaintiff's testimony was conflicting as to why plaintiff did not follow up. He indicated that he did not fully understand the grievance procedure, stating that he was not fully sure whether he was given a presentation about the grievance process at Gouverneur's orientation because he stopped paying attention based on his belief that it was not applicable to him or due to his short attention span. See Dkt. No. 26-5 at 102. Elsewhere in his deposition plaintiff suggests he was in fear for his life while at Gouverneur, but when asked if he feared filing an appeal to CORC, he indicated he had a general fear for his life at Gouverneur rather than a specific fear of proceeding with the grievance procedure. See Dkt. No. 26-5 at 99. Yet, plaintiff conceded that he did file four to five grievances while at Gouverneur. Plaintiff testified that he did not follow up on the grievance or pursue anything further when transferred to Cayuga because he did not know he was supposed to. See id. at 101. However, he also testified that he did not follow up on his grievance once at Cayuga because he was trying to fly under the radar, complete his time in custody, and go home. See Dkt. No. 26-5 at 100-101. In support of their motion for summary judgment, defendants provide the declarations of Ms. Hutchins and Ms. Seguin, who both declared that they checked records at both Gouverneur and DOCCS and there is no record of his appeal. See Dkt. Nos. 26-3, 26-4. Plaintiff does not counter defendants’ proof with supported arguments or evidence; he does not provide to the Court a copy of his appeal or any clarity on where he alleges to have sent the appeal. See Dkt. No. 26-5 at 12; See Gibbs v. Gadway, No. 9:19-CV-281 (GTS/DJS), 2019 WL 5191506, at *3 (N.D.N.Y. Oct. 15, 2019), report and recommendation adopted, No. 9:19-CV-0281 (GTS/DJS), 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (“Plaintiff makes a purely conclusory allegation that he appealed the grievance denial to CORC. Significantly, plaintiff has not provided a copy of the grievance appeal or even asserted on what date he filed the appeal. In light of the documented proof that no such appeal was filed, such a conclusory statement is insufficient to create a material question of fact on this Motion.”); see also Blake v. Porlier, No. 9:18-CV-1008 (DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y. Oct. 4, 2019), report-recommendation adopted, No. 9:18-CV-1008 (DNH/CFH), 2020 WL 58613 (N.D.N.Y. Jan. 6, 2020) (“Even considering that plaintiff swore under penalty of perjury that he mailed a grievance within the allotted time frame, he did not provide any evidence to substantiate his allegations. [ ] Therefore, plaintiff's unsupported allegations cannot give rise to an issue of material fact sufficient to defeat a motion for summary judgement.) (citations omitted)). “In short, ‘[g]iven the lack of evidence that Plaintiff's appeal to CORC was ever filed, or ever followed up on, it is not that the full scope of administrative remedies was not available to Plaintiff – rather, Plaintiff failed to fully exhaust the administrative remedies available to him.’ ” Shabazz v. Bailey, No. 9:20-CV-00057 (LEK/TWD), 2023 WL 5779533, at *7 (N.D.N.Y. June 28, 2023), report and recommendation adopted, No. 9:20-CV-57 (LEK/TWD), 2023 WL 5622049 (N.D.N.Y. Aug. 31, 2023), aff'd, No. 23-7252, 2025 WL 272602 (2d Cir. Jan. 23, 2025) (quoting Houston v. Coveny, No. 14-CV-6609, 2020 WL 2494439, at *3 (W.D.N.Y. May 14, 2020) and citing Litchmore v. Williams, No. 11-CV-7546, 2013 WL 3975956, at *6 (S.D.N.Y. Aug. 5, 2013) (“no ‘sufficient basis in the record to find that administrative remedies were unavailable’ where, among other things, there was ‘no evidence here that the plaintiff's appeal was actually mailed, intercepted, or ignored’ and ‘DOCCS has no record of any appeal filed with CORC’ ”)). “If a prisoner has failed to properly follow each of the applicable steps before commencing litigation, he has failed to exhaust his administrative remedies.” Scott v. Uhler, No. 9:16-CV-403 (TJM/CFH), 2019 WL 5197139, at *5 (N.D.N.Y. July 31, 2019), report and recommendation adopted, 2019 WL 4667495 (N.D.N.Y. Sept. 25, 2019). Accordingly, the undersigned concludes that plaintiff has Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 155 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 failed to exhaust his administrative remedies in that he has not raised a material question of fact as to whether he appealed the Superintendent's denial of his grievance to CORC. Thus, the undersigned must next assess whether administrative remedies were available to plaintiff. 4. Availability of Administrative Remedies *8 New York law establishes a three-step grievance and appeal process for prisoners. See N.Y. Comp. Codes R. & Regs. tit. 7 (“7 N.Y.C.R.R.”), § 701.5. That process consists of the following: (1) “[a]n inmate must submit a complaint” with the Inmate Grievance Resolution Committee, id. § 701.5(a)-(b); (2) if the inmate disagrees with the response to the grievance, the inmate must “appeal to the superintendent,” id. § 701.5(c); and (3) if the inmate disagrees with the superintendent's findings, he must “appeal to the CORC ... within seven calendar days after receipt of the superintendent's written response to the grievance,” id. § 701.5(d). “A prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure.” Toussaint, 660 F. Supp. 2d at 523 (cleaned up). The statute also states, “[i]f 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.” 7 N.Y.C.R.R. § 701.5(d)(3). Foskey v. Paige, No. 9:20-CV-504 (LEK/TWD), 2024 WL 2109150, at *3 (N.D.N.Y. May 10, 2024). 2 Applying special solicitude, it is arguable that plaintiff is contending that administrative remedies were unavailable on several grounds, some of them conflicting. The Supreme Court of the United States has identified three circumstances in which a court may find administrative remedies are not “available” for PLRA purposes: First, ... an administrative procedure is unavailable when ... it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.... Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can navigate it .... And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. Ross, 578 U.S. at 643-44. The Second Circuit has interpreted these three circumstances as nonexhaustive as Ross focused on the “three kinds of circumstances that were ‘relevant’ to the facts of that case.” Williams v. Correction Officer Priatno, 829 F.3d 118, 124 n.2 (2d Cir. 2016) (citing Ross, 578 U.S. at 643). 5. Was the Grievance Process Opaque? a. Did Not Know How to Grieve First, plaintiff's deposition testimony suggests that he did not fully exhaust because was not sure how to complete the grievance process. He testified that he had been incarcerated in state facilities before his incarceration at Gouverneur in 2022 but never had filed a grievance before the ones he submitted in this action. Plaintiff admits that he attended Gouverneur's “shop facility orientation,” but states that he was unaware if he was taught how to exhaust administrative remedies because he did not pay attention. See Dkt. No. 26-5 at 102 The undersigned observes that the underlying incidents are alleged to have occurred on April 11, 2022. Plaintiff filed his four or five grievances in April 2022, which were consolidated. The Superintendent denied plaintiff's consolidated grievance on May 5, 2022. Plaintiff attended “shop facility orientation” from May 16, 2022, to May 22, 2022. See Dkt. No. 26-3 at 9. Plaintiff alleges to have appealed 3 to CORC within two days of receiving his denial, meaning this all occurred before he competed his facility orientation training regarding how to file and exhaust grievances on May 16-22, 2022. See Dkt. No. 25-3 at 16; Dkt. No. 26-3 at 9. *9 The undersigned assesses whether plaintiff's statement that he did not know how to grieve is sufficient to raise Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 156 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 a valid argument as to opaqueness. The Second Circuit recently explained the “opaqueness” exception to the PLRA's exhaustion requirement applies where “[t]he regulations simply do not contemplate the situation in which [the prisoner] found himself, making it practically impossible for him to ascertain whether and how he could pursue his grievance.” Williams v. Priatno, 829 F.3d 118, 124 (2d Cir. 2016). Liberally read, plaintiff's deposition testimony suggests that he did not understand the grievance procedure at any stage. However, even accepting as true that plaintiff did not fully understand what steps needed to be taken to exhaust his administrative remedies, plaintiff does not demonstrate that his ignorance of the grievance process rendered administrative remedies “opaque” as that term is contemplated by precedent. To the extent plaintiff appears to have testified that he did not know how to proceed with the grievance process, plaintiff conceded that he: was aware that a grievance process existed; knew he had to “follow the necessary steps. I have to follow these specific steps”; knew that if informal methods of resolution were unsuccessful, he should file a grievance; asked his “bunkie” to help him file grievances; filed at least four grievances with respect to the underlying incident; and hired a fellow inmate to assist him. Dkt. No. 26-5 at 79. “[S]ince Plaintiff was able to discern and navigate the first two steps of the grievance process, there is nothing to suggest that the third step, the appeal to CORC, was opaque to such a point that it became incapable of use.” Beauvoir v. Smith, No. 9:14-CV-1495 (MAD/DEP), 2017 WL 4271636, at *3 (N.D.N.Y. Sept. 26, 2017). Defendants submit records from Gouverneur demonstrating that plaintiff successfully completed shop facility orientation which included training on how to file a grievance and exhaust administrative remedies. When asked about such training, plaintiff gave vague and dismissive answers, suggesting he was unsure if he learned about how to proceed with a grievance and the various steps required because he did not pay attention, believing that it was not relevant to him and/or because he did not have a sufficient attention span to focus. Plaintiff testified that he did not know how to grieve and properly exhaust his grievance does demonstrate that administrative remedies were unavailable to him. Plaintiff concedes that he attended the orientation, but that he was unsure if he was taught how to proceed through the grievance process because he did not pay attention as he felt the information was not relevant to him or he zoned out due to attention span issues. Similarly, when confronted at his deposition with the fact that the Superintendent's denial of his grievance included instructions that advised him that if he wished to appeal the denial, he was to sign and return the appeal section to the IGRC, plaintiff did not deny that the form contained such instruction, but responded that he was “not even sure” where he sent the appeal and was “pretty sure I sent it to the grievance. I am not sure where it went, man. I know I sent it out. I did every little piece of paperwork I was supposed to do.” Dkt. No. 26-5 at 97-99. Plaintiff's choosing not to pay attention to the training needed to learn how to exhaust or declining to seek assistance does not demonstrate that the grievance process was “essentially unknowable.” Hill v. Tisch, No. 02-CV-390, 2016 WL 6991171, at *7 (E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to demonstrate that the grievance “procedures were essentially unknowable”). It demonstrates that plaintiff actively chose against educating himself or allowing his facility to educate him as to the grievance procedure. *10 The undersigned recognizes that plaintiff's orientation took place after he filed his grievances and received the Superintendent's denial. Thus, although he may have been untrained regarding the grievance process at the time he filed his grievances and received the Superintendent's denial, he attended such training by May 22, 2022, at the latest. Upon completing the orientation, he could have reached out to the IGRC or CORC and requested an extension 4 of time to appeal to CORC, citing mitigating circumstances, but failed to do so. See 7 NYCRR § 701.6(g); 5 see generally Valverde v. Folks, No. 1:19-CV-08080-MKV, 2022 WL 836310, at *7 (S.D.N.Y. Mar. 21, 2022) (“As such, it is possible that if Plaintiff had sought an extension to file an appeal from CORC, he could have received one. Plaintiff never did so.”), aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10, 2023). Plaintiff's failure to avail himself of the grievance procedure is based on his ignorance of the training and failure to seek out resources rather than the opacity of the procedure. “Courts within the Second Circuit are split regarding whether a failure to respond by CORC constitutes unavailability excusing a plaintiff's failure to exhaust.” High v. Switz, No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3736794, at *4 (N.D.N.Y. July 9, 2018), report and recommendation adopted sub nom. High v. PA Switz, No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3730175 (N.D.N.Y. Aug. 6, 2018). Indeed, the Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 157 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 regulations “ ‘do not describe a mechanism’ for appealing or advancing a grievance when a grievant does not receive a response from CORC.” Id. at *5 (quoting Williams, 829 F.3d at 124). Plaintiff's case differs from those in which courts held administrative remedies were unavailable where a plaintiff appealed to CORC, but CORC never responded or failed to respond within a reasonable period of time. See, e.g., High, 2018 WL 3736794, at *4 (exclusing the plaintiff's failure to exhaust where the plaintiff appealed to CORC but never received a response, finding administrative remedies were unavailable when CORC failed to respond). Unlike in those cases, 6 where the Court found that administrative remedies were unavailable because the regulations did not explain what an inmate should do if he appealed to CORC but receives no response, in those cases there did not appear to be a question whether the plaintiffs actually appealed to CORC. Here, plaintiff presents no details nor any proof of his alleged appeal to CORC beyond his conclusory claim during his deposition. He testified that he appealed the Superintendent's denial, but offered conflicting testimony over where the appeal was sent – either to the Attorney General's Office or another agency “in Albany” or to the IGRC, did not provide a copy of the appeal, and did not indicate that he ever attempted to follow up with CORC or the IGRC after failing to receive any response from his appeal. See Valverde v. Folks, No. 1:19-CV-08080 (MKV), 2022 WL 836310, at *8 (S.D.N.Y. Mar. 21, 2022), aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10, 2023) (“Here, unlike Williams [v. Priatno], Plaintiff concedes that his initial grievance was processed and answered. [ ] .... Plaintiff had an avenue to appeal the denial of his grievance, however he filed the appeal form improperly and it does not appear that he made any attempt to ever ask the grievance supervisor for confirmation that his appeal was received.”). *11 Plaintiff proffered no argument or evidence that he “received written notice that the appeal was filed or that he attempted to contact CORC of the IGRC ... regarding the status of his appeal before commencing this action.” Bowie v. Woodruff, No. 9:1-8CV-0266 (BKS/ML), 2019 WL 7606078, at *6 (N.D.N.Y. Sept. 20, 2019), report and recommendation adopted, No. 9:18-CV-00266 (BKS/ML), 2019 WL 5445519 (N.D.N.Y. Oct. 23, 2019) (citing Fox v. Lee, 9:15-CV-0390 (TJM/CFH), 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.’ ”) vacated in part on other grounds 2023 WL 7481423 (2d. Cir. Nov. 13, 2023); see § 701.5(d)(3)(i) (noting that the IGRC dates all CORC appeals and will forward the inmate a copy of the receipt, and that “[i]f 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.”). Indeed, “[t]he record is devoid of any indication that Plaintiff followed up with the [facility] IGP supervisor ‘to confirm that the appeal was filed and transmitted to CORC’ when he did not receive written confirmation within forty-five days that his appeal was received.” Shabazz, 2023 WL 5779533, at *7 (quoting 7 N.Y.C.R.R. § 701.5(d)(3) (i) and citing Simpson v. Price, No. 9:19-CV-1413 (MAD/ ATB), 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29, 2021)) (“granting summary judgment on exhaustion grounds where plaintiff ‘provided no specifics regarding when the grievances were written, their content, or the steps he took to provide them to an officer to send to the grievance office’ and there was no documentary evidence to corroborate the fact plaintiff attempted to file a grievance, such as follow-up correspondences.”); see Gizewski v. N.Y. State Dep't of Corr. & Cmty. Supervision, No. 9:14-CV-124, 2016 WL 3661434, at *13 (N.D.N. Y July 5, 2016) (concluding that the plaintiff did not exhaust his administrative remedies because he failed to take further action under § 701.5(d)(3)(i) when he did not receive written notice of receipt by the CORC within 45 days of filing his appeal; he did not contact the Inmate Grievance Program to ascertain whether CORC received his appeal), aff'd, 692 F. App'x 668 (2d Cir. 2017)). By contrast, defendants produce records from both Gouverneur and DOCCS, along with declarations from the officials who maintain such records, showing that they have no record of plaintiff having ever filed an appeal of the Superintendent's denial of his grievance. See Dkt. Nos. 26-3, 26-4 at 7-8. Accordingly, plaintiff has failed to demonstrate that his lack of understanding of grievance process amounts to the grievance process being so opaque to be rendered incapable of use. b. Transfer Further, plaintiff's transfer from Gouverneur to Cayuga “does not excuse his failure to exhaust, as the grievance process is identical in all New York state-run facilities.” Campbell v. Prue, No. 9:16-CV-0004 (MAD/CFH), 2018 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 158 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 WL 4635708, at *5 (N.D.N.Y. July 3, 2018), report and recommendation adopted, No. 9:16-CV-0004 (MAD/CFH), 2018 WL 3574871 (N.D.N.Y. July 25, 2018) (citing Hartry v. Cnty. of Suffolk, 755 F.Supp. 2d 422, 434 (E.D.N.Y. 2010)) (“[S]ome courts [ ] have found that transfer within correctional facilities governed by the same governmental agency will not excuse exhaustion, regardless of whether the inmate had an opportunity to pursue the remedy while at the facility where the claim arose.”) (additional citations omitted). Plaintiff testified at his deposition that he did not attempt to follow up on his grievance after being transferred to Cayuga. Plaintiff offered conflicting testimony for his reasoning behind declining to follow up once he reached Cayuga. First, plaintiff testified that he did not follow up at Cayuga regarding his grievance because he did not know he was supposed to follow up there. However, he later testified that he decided not to pursue his grievance once at Cayuga because he wanted to be able to serve out his time at Cayuga without being “noticed.” Dkt. No. 26-5 at 101. Second, plaintiff made clear that he was not in any fear while incarcerated at Cayuga. Thus, he was not prevented from pursuing his grievance at Cayuga. Further, as noted, plaintiff received the Superintendent's denial of his grievance on May 5, 2022, and remained at Gouverneur until June 13, 2022, giving him sufficient time to pursue an appeal at Gouverneur before his transfer. See Dkt. No. 26-2 at 2. Plaintiff's conclusory and conflicting statements that he did not know how to use the grievance procedure fails to demonstrate that, as a result of his transfer to Cayuga, administrative remedies were so opaque they were rendered incapable of use. 6. Grievance Process as a Dead End *12 Plaintiff testified that he did not know the next step he was supposed to take when he did not receive a response from his alleged appeal to CORC. Plaintiff further testified that he filed a fifth grievance regarding “medical” while at Gouverneur but that he did not receive a response. Dkt. No. 26-5 at 94-95. Applying a very liberal reading of this testimony, plaintiff's statements could be interpreted as arguing that the grievance procedure operated as a “dead end.” However, plaintiff's testimony on this point fails to raise a material question of fact for the reasons discussed below. Courts have rejected arguments that the grievance procedure was a “dead end” where the plaintiffs chose to participate in the grievance procedure in some way, even in unrelated matters, concluding that such participation demonstrates that the plaintiffs did not view the grievance procedure as a dead end. See Luke Matthews, et al. v. L. Sweeny, Clinton Corr. Sergeant, et al., No. 9:17-CV-0503 (GTS/ML), 2025 WL 447734, at *7, *7 n.13 (N.D.N.Y. Feb. 10, 2025) (citing Walker v. Ball, 16-CV-0437, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018)) (“While Plaintiff did not file any grievances regarding the alleged misconduct of Noonan and St. Johns ..., he did file grievances regarding other issues .... This shows that Plaintiff did not view the filing of grievances as a dead end.”), report recommendation adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (and others); see Barrett v. Ballard, No. 9:23-CV-113 (DNH/ DJS), 2024 WL 4627511, at *4 (N.D.N.Y. Oct. 4, 2024), report and recommendation adopted, No. 9:23-CV-113, 2024 WL 4627801 (N.D.N.Y. Oct. 30, 2024) (“Plaintiff makes no argument that the grievance process was unavailable to him and cannot carry that burden especially since he claims that he did, in fact pursue, at least at the outset, to resolve this issue through the grievance process.”). Here, plaintiff filed at least four grievances regarding the issues underlying this complaint; thus, any argument suggesting that he believed the grievance procedure to be a dead end is without force. To the extent plaintiff's testimony that he filed a fifth grievance that went “missing” could suggest that he believed the grievance process was a dead end, “Courts within the Second Circuit have continuously held that ‘mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.’ ” Blake v. Porlier, No. 9:18-CV-1008 (DNH/CFH), 2019 WL 7484052, at *5 (N.D.N.Y. Oct. 4, 2019) (quoting Rodriguez v. Cross, No. 9:15-CV-1079 (GTS/CFH), 2017 WL 2791063, at *5 (N.D.N.Y. May 9, 2017) report and recommendation adopted, 2017 WL 1076343 (N.D.N.Y. Mar. 22, 2019)). Plaintiff offers no proof that he filed a fifth grievance relating to the matters underlying this suit or any support for his conclusory claim that the fifth grievance was filed and went missing. See Rodriguez, 2017 WL 2791063, at *5 n.13 (finding that the plaintiff's failure to exhaust was not excused because, although the plaintiff “state[d] that some grievances were destroyed ... he ha[d] not submitted any copies of these grievances, nor d[id] he specify when he attempted to file them.”). In sum, the undersigned concludes that plaintiff has failed to demonstrate a material question of fact as to whether Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 159 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 the grievance process amounted to a “dead end” such that administrative remedies were unavailable to him. 7. Fear Plaintiff testified that he was in fear for his life while he was incarcerated at Gouverneur. See Dkt. No. 26-5 at 99. When asked for clarification as to whether he was afraid to file a grievance, plaintiff stated, “Grievance? I was – was more fearful for my life.” Id. Plaintiff testified, however, that he was not in fear once he was transferred to Cayuga. See id. at 100. He testified that he did not pursue his grievance after not receiving a response to his alleged appeal because he did not know he was “supposed to” but also because he “didn't want the whole state against me, man. I didn't want to leave one jail and then go to another jail and I got the police all over me there neither. So I wanted to like kind of fly under the radar.” Id. at 101. *13 Administrative remedies may be unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860. However, a generalized fear of retaliation is insufficient to overcome a failure to exhaust administrative remedies. Salmon v. Bellinger, No. 9:14-CV-0827 (LEK/DJS), 2016 WL 4411338, at *5 (N.D.N.Y. July 5, 2016). Estoppel is found where “verbal and physical threats of retaliation, physical assault, denial of grievance forms or writing implements, and transfers” occur showing that defendants acted affirmatively to prevent an inmate from availing him or herself of the grievance procedures. Id. at *5 (quoting Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011)). Pridgen v. Beatie, No. 9:16-CV-535 (DNH/CFH), 2018 WL 1402049, at *8 (N.D.N.Y. Jan. 17, 2018), report and recommendation adopted, No. 9:16-C-V535 (DNH/CFH), 2018 WL 1394146 (N.D.N.Y. Mar. 19, 2018). Here, plaintiff's generalized, conclusory arguments about being in fear while at Gouverneur fail to state a viable unavailability argument under the “machination, misrepresentation, or intimidation” exception. Ross, 136 S. Ct. at 1860. Plaintiff does not assert that any specific individual at Gouverneur prevented him from filing an appeal by threatening or intimidating him. Plaintiff offers no argument or proof that defendants or other prison officials “affirmatively or misleadingly prevented Plaintiff from filing the appeal to CORC” or otherwise pursuing his administrative remedies.” Shabazz, 2023 WL 5779533, at *7. Further, when asked if he were afraid of filing a grievance, his response suggested that he was fearful, generally, during his time at Gouverneur, and suggested that he was not specifically afraid of proceeding with his grievance. See Dkt. No. 26-5 at 99. Significantly, the undisputed facts in this case belie any claims of fear. Plaintiff filed four – and argues he filed five – grievances at Gouverneur, defeating an argument that he was too afraid for his life to take advantage of his administrative remedies. See, e.g., McNab v. Doe, 686 F. App'x 49, 51 (2d Cir. 2019) (summary order) (affirming summary judgment dismissing the plaintiff's complaint for failure to exhaust where although the plaintiff asserted that the defendants tried to intimidate him because “none of the actions allegedly taken by the defendants actually prevented [him] from submitting his complaint letter.”); Riles v. Buchanan, 656 F. App'x 577, 581 (2d Cir. 2016) (summary order) (finding that the defendants’ alleged threats of retaliation did not interfere with the plaintiff's exhaustion efforts because, following a threat, the plaintiff “thereafter submitted ... [a] grievance in spite of this alleged threat”); Hall v. Annucci, No. 19- CV-5521 (KMK), 2022 WL 3903255, at *10 (S.D.N.Y. Aug. 30, 2022), aff'd, No. 22-2031, 2023 WL 7212156 (2d Cir. Nov. 2, 2023) (“[w]here an inmate files a grievance or appeals a grievance determination after having received threats or suffered retaliation, the inmate's conduct ‘directly cuts against’ ... [an] argument that ... administrative remedies were unavailable.”) (citation omitted). *14 Accordingly, the undersigned concludes that plaintiff fails to demonstrate that administrative remedies were unavailable to him on the ground that “prison administrators thwart[ed] [him] from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 643-44. C. Doe Defendants The undersigned observes that plaintiff has failed to identify or serve process on John Does 1-8, as required by Rule 4(m) and N.D.N.Y. Local Rule 4.1, despite having ample time and opportunity. Plaintiff commenced this action on March 8, 2023. See Compl. Discovery in this action expired in March 2024. See Dkt. No. 22. Plaintiff has had a substantial amount of time to identify and serve the Doe defendants, “and the Court is under no obligation to extend the deadline Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 160 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 indefinitely.” Santiagocruz v. Doe #4, No. 9:21-CV-0806 (TJM/ML), 2023 WL 9600956, at *1 n.1 (N.D.N.Y. Dec. 15, 2023), report and recommendation adopted sub nom. Santiagocruz v. Gordon, No. 9:21-CV-806, 2024 WL 532499 (N.D.N.Y. Feb. 8, 2024) (citation omitted); see Waldo v. Goord, 97-CV-1385, 1998 WL 713809, at *5 (N.D.N.Y. Oct. 1, 1998) (Kahn, J.) (dismissing claims against Doe defendants pursuant to Fed. R. Civ. P. Rule 4(m) where the pro se plaintiff failed to serve the Doe defendants within a year of commencing the action). “All discovery is complete and thus, [P]laintiff's failure to identify the ‘John Doe’ defendant[s] mandates dismissal.” Epps v. City of Schenectady, No. 10-CV-1101, 2013 WL 717915, at *5 (N.D.N.Y. Feb. 27, 2013). Accordingly, the undersigned recommends sua sponte dismissal of defendants John Does 1-8 from this action without prejudice. D. Dismissal The Second Circuit has “recognized that failure to exhaust administrative remedies is usually a ‘curable, procedural flaw’ that can be fixed by exhausting those remedies and then reinstituting the suit.” Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001) (quoting Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999)), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002). Thus, where a claim is dismissed for failure to exhaust administrative remedies, dismissal without prejudice is appropriate if the time permitted for pursuing administrative remedies has not expired. Berry v. Kerik, 366 F.3d 85, 86-87 (2d Cir. 2004); see Pettus v. McCoy, 04-CV-0471, 2006 WL 2639369, at *1-2 (N.D.N.Y. Sept. 13, 2006) (dismissing a complaint without prejudice for failure to exhaust). However, if a prisoner has failed to exhaust available administrative remedies and the time in which to exhaust has expired, it is proper for the court to dismiss the complaint with prejudice because any attempt to exhaust would be futile. See Berry v. Kerik, 366 F.3d 85, 86 (2d Cir. 2004); see, e.g., Hilbert v. Fischer, 12-CV-3843, 2013 WL 4774731, at *7 (S.D.N.Y. Sept. 5, 2013) (collecting cases). Here, plaintiff received the Superintendent's denial on May 3, 2022, and he commenced this action March 8, 2023. As plaintiff's time to exhaust his administrative remedies has expired, it is recommended that his complaint be dismissed with prejudice. IV. Conclusion WHEREFORE, for the reasons set forth herein, it is hereby RECOMMENDED, that defendants’ West and Fenlong's Motion for Summary Judgment, Dkt. No. 26, be GRANTED in its entirety with prejudice; and it is further *15 RECOMMENDED, that the claims against the Doe defendants be DISMISSED without prejudice based on plaintiff's failure to timely identify and serve those defendants; and it is ORDERED, that the Clerk serve this Report- Recommendation & Order on the parties in accordance with the Local Rules. IT IS SO ORDERED. Pursuant to 28 U.S.C. 636(b)(1) and Local Rule 72.1(c), the parties have fourteen 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. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e). 7 All Citations Slip Copy, 2025 WL 1033787 Footnotes Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 161 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 1 Unless otherwise noted, the Court has provided plaintiff with copies of all unpublished cases cited herein. 2 As in this case, There are ... special procedures that may be used when the grievance involves a claim of staff misconduct. Id. § 701.8. A grievance alleging staff misconduct, once it is recorded and given a number, must be sent directly to the Superintendent, and the Superintendent must issue a decision within twenty-five days. Id. § 701.8(f). If the grievant wishes to appeal a decision by the Superintendent to CORC, he must file a notice of decision to appeal with the inmate grievance clerk at the bottom of the Superintendent's decision within seven days of receipt of the decision. Id. § 701.8(h). CORC is required to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.8(i) (incorporating § 701.5). Ayers v. Trombley, No. 9:17-CV-01229 (DNH/TWD), 2019 WL 3892864, at *10 (N.D.N.Y. July 8, 2019), report and recommendation adopted, No. 9:17-CV-1229 (DNH/TWD), 2019 WL 3891027 (N.D.N.Y. Aug. 19, 2019). 3 As concluded, supra, the undersigned has found that plaintiff failed to demonstrate that he appealed the Superintendent's denial to CORC. 4 The regulations provide that an individual who wishes to appeal a Superintendent's denial in the expedited procedure has seven calendar days after receipt of the denial to do so. See 7 N.Y.C.R.R. 701.6(h)(2). The Superintendent's denial of his grievance is dated May 5, 2022. It is unclear when he received the Superintendent's denial, but the undersigned recognizes that his training likely came after the seven-day period had expired. However, plaintiff demonstrates that his absence of formal training at Gouverneur did not stop him from successfully navigating the grievance procedure at the earlier stages. 5 A request for an extension of time to file an appeal to CORC may be requested in writing, but “an exception to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence.” N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(1)(i)(a), (b). An inmate may choose to file a separate grievance if a request for an extension is denied. See id. § 701.6(1)(i)(b). Plaintiff completed the shop facility orientation on May 22, 2022, within forty-five days after the alleged occurrence on April 11, 2022. Thus, even if he was untrained on how proceed with the grievance process after receiving the Superintendent's denial until after he completed training, he still had time to request an extension to do so after receiving training. In such training, he would have likely also been advised to write to CORC or the IGRC if he did not receive confirmation of receipt of an appeal. 6 Further, in some cases addressing unavailability when an appeal to CORC is unanswered, the court found administrative remedies unavailable where the inmate plaintiff was transferred before receiving a response; here, however, plaintiff received the Superintendent's denial before being transferred and remained at Gouverneur for over a month after receipt of the denial. See, e.g., Robinson v. Ballard, 9:13-CV-01213 (TJM/ TWD), 2017 WL 979047, at *12 (N.D.N.Y. Feb. 3, 2017), report and recommendation adopted, 2017 WL 979039 (N.D.N.Y. Mar. 13, 2017) (citing Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016)) (“as in Williams, Plaintiff in this case was transferred to a new facility before receiving a response to his grievance and failed to receive a response after the transfer.”); See Dkt. No. 26-2 at 2. 7 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation & Order was mailed to you to serve and file objections. See 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. See id. § 6(a)(1)(C). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 162 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 163 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 1033787 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Craig A. JACKSON, Plaintiff, v. Sergeant WEST, et al., Defendants. No. 9:23-CV-0306 (LEK/PJE) | Signed February 20, 2025 Attorneys and Law Firms Craig A. Jackson, 22-B-0406, Cayuga Correctional Facility, P.O. Box 1186, Moravia, New York 13118, Plaintiff pro se. ALEXANDRA L. GALUS, ESQ., LAUREN R. ROSENBERG, ESQ., NYS Office of the Attorney General State Capitol, Albany, New York 12224, Attorneys for defendants. REPORT-RECOMMENDATION AND ORDER PAUL J. EVANGELISTA, UNITED STATES MAGISTRATE JUDGE *1 Plaintiff pro se Craig A. Jackson (“plaintiff”), an inmate who was, at all relevant times, in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants Sergeant West and D. Fenlong (“defendants”) violated his constitutional rights under the Eighth Amendment. See Dkt. No. 1 (“Compl.”). Presently before the Court is defendants’ motion for summary judgment brought pursuant to Rule 56 of the Federal Rules of Civil Procedure (“Fed. R. Civ. P.”). See Dkt. No. 26. Plaintiff did not oppose. For the following reasons, it is recommended that defendants’ motion be granted. I. Background 1 On a motion for summary judgment, the facts are related in the light most favorable to the nonmoving party. See Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir. 1991) (“In assessing the record ... to determine whether there is a genuine issue as to any material fact, the court is required to resolve all ambiguities and draw all factual inferences in favor of the party against whom summary judgment is sought.”). On June 13, 2024, the Court served upon plaintiff forms titled, “Notice of Due Date to Respond to Motion for Summary Judgment” and “Notification of the Consequences of Failing to Respond to a Summary Judgment Motion. Dkt. No. 27. These forms advise plaintiff of his deadline to respond to defendants’ motion and advise him that if he “do[es] not submit a proper response to the defendants’ statement of material facts, the Court may deem [plaintiff] to have admitted the defendants’ factual statements.” Dkt. No. 27 at 1-2; see also N.D.N.Y. L.R. 56.1(b). Plaintiff did not respond to defendants’ Statement of Material Facts. In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable factual inferences in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994). Where a non- movant does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's statement of material facts; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003). Therefore, the Court will, for purposes of this motion, deem as true all properly-supported facts stated in defendants’ Statement of Material Facts. See Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998) (accepting as true the material facts contained in unopposed statement of material facts); see also Demuth v. Cutting, No. 9:18-CV-789 (LEK/TWD), 2020 WL 957381, at *1 (N.D.N.Y. Feb. 3, 2020), report and recommendation adopted, No. 9:18-CV-0789 (LEK/TWD), 2020 WL 950229 (N.D.N.Y. Feb. 27, 2020) (“Plaintiff's failure to oppose Defendant's motion results in the admission of properly supported facts, however the Court must still ensure those facts show Defendant is entitled to judgment as a matter of law.”). A. Facts *2 Defendants provide that plaintiff was housed at Gouverneur from April 11, 2022, to June 13, 2022. See Dkt. No. 26-2 at 2. Gouverneur had a fully-functioning inmate grievance program during plaintiff's period of incarceration. See id. (citing Dkt. No. 26-4 at ¶11). Plaintiff's claims are Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 164 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 proper subjects for a grievance under 7 NYCRR § 701.1, et seq. See Dkt. No. 26-2 at 2. Plaintiff filed four grievances, from April 12, 2022, through April 17, 2022, alleging that defendants West and Fenlong assaulted him on April 11, 2022. See id. (citing Dkt. No. 26-4 at ¶14). The four grievances were consolidated into Grievance No. GOV-0087022. See id. Due to the nature of the grievance, it was forwarded to the Superintendent. See id. at 3. On May 5, 2022, the Superintendent issued a determination denying plaintiff's grievance. See id. at 3 (citing Dkt. No. 26-4 at ¶28). Defendants contend that plaintiff did not appeal the grievance denial to CORC. See id. (citing Dkt. No. 26-4 at ¶13). II. Legal Standards Fed. R. Civ. P. 56 instructs courts to grant summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, while “[f]actual disputes that are irrelevant or unnecessary” will not preclude summary judgment, summary judgment cannot be granted if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; see also Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991) (“Only when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.”). The party seeking summary judgment bears the burden of informing a court of the basis for its motion and identifying those portions of the record that the moving party claims will demonstrate the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has met its initial burden, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts” to defeat summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmoving party may not rely on “mere conclusory allegations, speculation, or conjecture,” Fischer v. Forrest, 968 F.3d 216, 221 (2d Cir. 2020), and must present more than a mere “scintilla of evidence” to support its claims, Anderson, 477 U.S. at 252. At the same time, a court must resolve all ambiguities and draw all inferences in favor of the nonmoving party. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S 133, 150 (2000). The Court “may not make any credibility determinations or weigh the evidence.” Id. Thus, a court's duty in reviewing a motion for summary judgment is “carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Where, as here, a plaintiff proceeds pro se, the court must grant him “special solicitude,” construe his submissions “liberally,” and read such submissions “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (internal quotation marks omitted) (citing Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)). This is because “a pro se litigant generally lacks both legal training and experience and, accordingly, is likely to forfeit important rights through inadvertence if [ ] not afforded some degree of protection.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010) (citing Triestman, 470 F.3d at 475). *3 However, the Second Circuit has cautioned district courts that they “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.” Triestman, 470 F.3d at 477 (citations omitted). Further, the “special solicitude” standard does not excuse “frivolous or vexatious filings by pro se litigants,” nor does it “exempt a party from compliance with relevant rules of procedural and substantive law.” Id. III. Discussion A. Argument Defendants argue that this case must be dismissed because plaintiff did not exhaust his administrative remedies prior to commencing this action because he did not appeal the Superintendent's denial of his grievance to CORC. See Dkt. No. 26-1 at 5. Although plaintiff does not oppose this motion, in his deposition, he contended that he appealed the Superintendent's denial to CORC but did not receive a response. See Dkt. No. 26-5 at 92-93. B. Analysis Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 165 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 1. Exhaustion Standards 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. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 ... by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”). 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 v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion is required even where the prisoner seeks relief not available in the administrative grievance process, such as money damages. See 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 is incarcerated.” Adams v. Annucci, 537 F. Supp. 3d 475, 477-78 (W.D.N.Y. 2021); see Jones v. Bock, 549 U.S. 199, 218 (2007). “In accordance with the PLRA ... [DOCCS] has made available a well-established inmate grievance program ... [which] involves [ ] following [a] three-step procedure for the filing of grievances.” Smith v. Kelly, 985 F. Supp. 2d 275, 280 (N.D.N.Y. 2013) (citing 7 N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7). “Exhaustion is mandatory—unexhausted claims may not be pursued in federal court.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011). Nonetheless, “the defendants have the burden of proving that [the plaintiff's] claim has not been exhausted[.]” Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (citations omitted). A defendant satisfies this burden by “establishing ... that a grievance process exists” and that the plaintiff failed to use the grievance procedure. Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015) (citing Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003), and Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999)). “[T]he PLRA requires proper exhaustion, which means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits).” Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir. 2006) (quotation marks and citations omitted). “[O]nce a defendant has produced reliable evidence that such remedies were generally available, and the plaintiff nevertheless failed to exhaust those remedies, the plaintiff must then counter the defendant's proof by showing that, as to him or her, the remedy was unavailable.” Coleman v. Nolan, No. 9:15-CV-40 (ATB), 2018 WL 4732778, at *4 (N.D.N.Y. Oct. 2, 2018) (citing Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y. 2013)). Availability means “an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action complained of.’ ” Ross v. Blake, 578 U.S. 632, 642 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). “An inmate ... must exhaust available remedies, but need not exhaust unavailable ones.” Id. *4 There are “three kinds of circumstances in which an administrative remedy ... is not capable of use to obtain relief.” Ross, 578 U.S. at 643. 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. (citing Booth, 532 U.S. at 736). “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Lastly, administrative remedies are unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 644. 2. Declarations & Plaintiff's Deposition Testimony Defendants submit a declaration from Laura Hutchins, the Incarcerated Grievance Program Supervisor at Gouverneur Correctional Facility. See Dkt. No. 25-3. Ms. Hutchins declared that plaintiff successfully completed “shop facility orientation” on May 16, 2022, through May 22, 2022, during which time he was given a presentation on how to file and exhaust grievances. See Dkt. No. 26-3 at 2, 9. Ms. Hutchins located records of plaintiff having filed four grievances in April 2022, regarding a staff assault on April 11, 2022, and that these grievances were consolidated into Grievance No. GOV-0087-22. See id. at 6. Gouverneur's records further reveal that the Superintendent denied plaintiff's consolidated grievance on May 5, 2022. See Dkt. No. 26-3 at 6 (citing Dkt. No. 26-3 at 16). The denial form advised plaintiff that “[i]f you wish to appeal the above decision of the Superintendent, please sign below and return this copy to the IGRC at the facility where the grievance was filed. You have seven (7) calendar days from the receipt of this notice to file your appeal. Please provide a reason why Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 166 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 you are appealing this decision to CORC.” Id. Ms. Hutchins declared that Gouverneur's records further show that plaintiff never appealed the Superintendent's denial of his consolidated grievance. See Dkt. No. 26-3 at 9. Defendants further submit a declaration from Rachael Seguin, Director of the Incarcerated Grievance Program for DOCCS. See Dkt. No. 26-4 at 1. Ms. Seguin declares that DOCCS Directive 4040 provides that DOCCS must “maintain grievance files for the current calendar year and the previous four calendar years,” that DOCCS maintains such files, and that “she searched DOCCS records for any appeals received by CORC relating to plaintiff's instant allegation.” Dkt. No. 26-4 at 4. The records revealed that plaintiff “has not appealed any grievances to CORC pertaining to allegations of Eighth Amendment violations against Defendants Fenlong and West, while Plaintiff was housed at Gouverneur C.F. in DOCCS custody under DIN: 22-B-0405.” Id. Defendants note that plaintiff testified at his deposition that he “ ‘filed the appeal at Gouverneur in May, like two days after’ he received the determination.” Dkt. No. 26-1 at 9. Defendants contend that this assertion is incorrect because DOCCS and Gouverneur records show that plaintiff never appealed the Superintendent's denial. See id. Defendants anticipate a potential argument, based on statements plaintiff made in his deposition, of the existence of “some type of conspiracy on behalf of the facility to hide or destroy his paperwork,” but contend that “such allegations are conclusory and are not sufficient to defeat a motion for summary judgment.” Id. Thus, defendants argue that this matter must be dismissed for plaintiff's failure to exhaust his administrative remedies before commencing this action. As plaintiff has not responded to the motion for summary judgment, the Court does not have before it any of plaintiff's positions regarding exhaustion. Out of special solicitude to plaintiff and in an attempt to view the facts in the light most favorable to the nonmoving party, the undersigned has searched the record for potential arguments regarding exhaustion. In his deposition, when asked if he “understand[s] what the grievance process is at ... the DOCCS facility,” plaintiff acknowledged that he attended an orientation about grievances and stated that he “somewhat” understood the process. Dkt. No. 26-5 at 79. Plaintiff testified that his understanding of the grievance process is that he needs to “follow the necessary steps. I have to follow these specific steps.” Id. He states, “what I can do is I can bring it to the officer's attention.... If that don't work, maybe speak to a sergeant or something like that. If that don't get nowhere, I write a grievance.” Id. at 79. When plaintiff was asked how he knew to file a grievance, plaintiff stated, “This isn't my first time in jail. I just – you know, I – I—and these grievances that I've written, these are the first grievances I ever written in my whole life. I just – I just knew that, you know what I mean, I had to report it.” Id. at 80. When asked further how he knew how to file a grievance, plaintiff responded, “I mean, I had a bunkie in the box. I just wrote out – it wasn't no specific thing. I just – I just took a piece of paper and just wrote down what happened and sent it – and sent it to grievance.” Id. at 81. When the AAG asked how he knew where to send the grievance, plaintiff testified, *5 it's no specific place. I was in the box. It's no specific place you have to send a grievance. You just slide it underneath your door. They come and get the mail. It is not like, no, I could go and put this in a grievance box. No, we're locked in already. We're in a box. Id. The AAG inquired about the grievance orientation plaintiff attended, to which plaintiff stated, “I am not sure about that, man. I am not even going to even – I – I can't answer it.” Dkt. No. 26-5 at 81-82. Plaintiff testified that he filed “like five” grievances with respect to the issues underlying this action. Id. at 82. When asked if he heard back about his grievances, plaintiff testified, “I received a letter in the mail ... facility mail, stating me that -- it was stating that it would – they had shut it down. They – they – they shut down my grievance. It wasn't accepted.” Id. at 83. In response to the AAG's question whether he heard back from the grievance office about his grievances, plaintiff testified, “yes.” Id. at 83. Plaintiff acknowledged the Superintendent's denial and stated that he understood the denial to mean, “it wasn't going to be nothing that was done about the incident and that it was going to be swept under the rug.” Id. at 84. He further testified that he understood the Superintendent's denial to mean that “it wasn't found valid. It was – it was shut down. It wasn't going through.... Basically, ... it's denied.” Id. at 92. Plaintiff testified that he “filed the appeal at Gouverneur in May, like two days after I got – right after I got that paper in the mail, right, I filed – I filed my appeal for it.” Dkt. No. 26-5 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 167 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 at 92. He states he did not receive a response to his appeal of the Superintendent's decision. See id. at 92-93. When asked if it was his “understanding that the appeal you filed was going to go to CORC,” plaintiff testified that he “didn't know where it was going.” Id. He testified affirmatively that he filled out the bottom portion of the Superintendent's denial form and sent it in. See id. at 93. When plaintiff did not hear back on his appeal of the Superintendent's denial, he did not file another grievance or follow up with any kind of request to the grievance office. See id. at 94. When asked why he did not follow up, plaintiff stated, “I was still in that facility right there. And a lot of the paperwork, a lot of stuff, it was all against me over there. You get what I'm saying. I really didn't have a – like I said, I put in five grievances. You showed me four. I'm missing a grievance. You get what I'm saying?” Id. at 94-95. Plaintiff contended that he was “refused medical over there. I did not feel safe over there. Any type of paperwork that I do have and that I was able to escape with out of that facility, like I'm blessed to have it. Like I – I – I didn't have no control.” Id. When questioned about how he filed the appeal of his grievance denial, plaintiff testified that he “had another fellow peer help me out in here because I'm – I'm really not law library savvy like that. So I actually paid somebody to help me put this whole thing together ... [s]o I could get the help that I need because I – I – like I said, I've never been involved in this type of stuff before .... I don't know what I am doing .... I told my story to a couple guys ... and they helped me to get this far. And I -- I'm struggling here, man.” Dkt. No. 26-5 at 96. *6 Plaintiff testified that, to file his appeal of the Superintendent's denial, he went to the law library with another inmate who “basically did everything. I signed it and – and we sent it out.” Dkt. No. 26-5 at 97. Plaintiff testified that he sent his appeal to “Albany – it went to this same address that I get all this mail from. It went to office of the attorney – it went to you.” Id. When asked to clarify if plaintiff was stating that he sent his appeal of the Superintendent's decision to the Attorney General's Office, plaintiff stated, “It went to the – all that – that's all in the same building in Albany, right? The Attorney General's office and everything is in Albany, two twenty – I believe it's two twenty.” Id. at 97. When confronted with the fact that the Superintendent's denial of his grievance contained instructions stating that any appeal of the Superintendent's decision is to be sent to the Inmate Grievance Resolution Committee (“IGRC”) at the facility where the grievance is filed, but that he testified he sent it to the Attorney General's Office, plaintiff stated that he was “not even sure” where he sent it. Dkt. No. 26-5 at 97. He stated that he is “pretty sure I sent it to the grievance. I am not sure where it went, man. I know I sent it out. I did every little piece of paperwork I was supposed to do.” Id. at 98-99. When asked whether he was “fearful that your grievance somehow wouldn't be listened to at that facility, plaintiff replied “Grievance? I was – was more fearful for my life.” Id. at 99. Plaintiff testified that when he was transferred out of Gouverneur to Cayuga, he did not follow up with the grievance office at Cayuga or attempt to pursue his grievance further. See Dkt. No. 26-5 at 95. Plaintiff testified that he “didn't know I had to” as he already filed five grievances at Gouverneur and “they shut it down.” Id. at 95. “I put the appeal in. I didn't hear nothing about the appeal.” Id. He says when he was transferred to Cayuga, he also did not hear anything about his appeal. See id. Plaintiff then testified that he did not attempt to seek the status of his grievance once he was transferred to Cayuga because he “was happy to get out of that facility .... it's a whole different environment in the facility I am in now than Gouverneur. You could – you could feel the fear over there.” Id. at 100. Plaintiff testified that once he was transferred to Cayuga, “I could start fresh and then go about my business, do my time, and get home. I wasn't really like – I didn't want the whole state against me, man. I didn't want to leave one jail and then go to another jail and I got the police all over me there neither. So I wanted to like kind of fly under the radar.” Id. at 101. Plaintiff states that upon transfer to Cayuga, he did not complete another orientation about the grievance procedure. See Dkt. No. 26-5 at 102. As he had completed a full orientation at Gouverneur, “the grievance thing was not discussed” at Cayuga; he underwent a more streamlined orientation. Id. When asked whether the original orientation at Gouverneur covered grievances, plaintiff then testified, “I'm not sure about all that, man. I – that's not something that I am paying attention to, man. I came to jail to do my time, man. Not write grievances, man. You get what I'm saying? That's – that's – that's just what it boils down to.” Id. at 102. When asked to clarify whether he was testifying that he never attended an orientation that went over the grievance process, plaintiff again stated, “I'm not sure, man. I – maybe don't be paying attention to a lot of shit. If it – if it don't – if it don't affect me or something like that, I'm just not paying attention to everything. I have a short attention span on certain things.” Id. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 168 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Plaintiff testified that once he was transferred to Cayuga, he was in general population, but when asked whether plaintiff could have “stopped by the grievance office at any point in time,” he testified, “I mean, yeah. Yes, I guess. I'm not even sure if we even have a grievance building here at all.” Dkt. No. 26-5 at 105. Plaintiff further testified that while at Cayuga, he was not “intimidated all,” “assaulted at all,” or “in fear for [his] life at all,” by Cayuga staff. Id. 3. Exhaustion of Administrative Remedies Here, the record is clear that plaintiff did not exhaust his administrative remedies before commencing this action. Although plaintiff testified that he appealed the Superintendent's denial of his grievance with help from a fellow inmate, he testified that was unsure if he sent the appeal to the IGRC or to the Attorney General's Office or another agency in Albany. The Court has before it no proof of his alleged appeal. *7 Plaintiff's testimony on exhaustion is littered with contradictions and lacks support. Plaintiff testified that he never received a response to his appeal, but did not follow up while he was at Gouverneur or Cayuga. Plaintiff's testimony was conflicting as to why plaintiff did not follow up. He indicated that he did not fully understand the grievance procedure, stating that he was not fully sure whether he was given a presentation about the grievance process at Gouverneur's orientation because he stopped paying attention based on his belief that it was not applicable to him or due to his short attention span. See Dkt. No. 26-5 at 102. Elsewhere in his deposition plaintiff suggests he was in fear for his life while at Gouverneur, but when asked if he feared filing an appeal to CORC, he indicated he had a general fear for his life at Gouverneur rather than a specific fear of proceeding with the grievance procedure. See Dkt. No. 26-5 at 99. Yet, plaintiff conceded that he did file four to five grievances while at Gouverneur. Plaintiff testified that he did not follow up on the grievance or pursue anything further when transferred to Cayuga because he did not know he was supposed to. See id. at 101. However, he also testified that he did not follow up on his grievance once at Cayuga because he was trying to fly under the radar, complete his time in custody, and go home. See Dkt. No. 26-5 at 100-101. In support of their motion for summary judgment, defendants provide the declarations of Ms. Hutchins and Ms. Seguin, who both declared that they checked records at both Gouverneur and DOCCS and there is no record of his appeal. See Dkt. Nos. 26-3, 26-4. Plaintiff does not counter defendants’ proof with supported arguments or evidence; he does not provide to the Court a copy of his appeal or any clarity on where he alleges to have sent the appeal. See Dkt. No. 26-5 at 12; See Gibbs v. Gadway, No. 9:19-CV-281 (GTS/DJS), 2019 WL 5191506, at *3 (N.D.N.Y. Oct. 15, 2019), report and recommendation adopted, No. 9:19-CV-0281 (GTS/DJS), 2020 WL 1227156 (N.D.N.Y. Mar. 13, 2020) (“Plaintiff makes a purely conclusory allegation that he appealed the grievance denial to CORC. Significantly, plaintiff has not provided a copy of the grievance appeal or even asserted on what date he filed the appeal. In light of the documented proof that no such appeal was filed, such a conclusory statement is insufficient to create a material question of fact on this Motion.”); see also Blake v. Porlier, No. 9:18-CV-1008 (DNH/CFH), 2019 WL 7484052, at *6 (N.D.N.Y. Oct. 4, 2019), report-recommendation adopted, No. 9:18-CV-1008 (DNH/CFH), 2020 WL 58613 (N.D.N.Y. Jan. 6, 2020) (“Even considering that plaintiff swore under penalty of perjury that he mailed a grievance within the allotted time frame, he did not provide any evidence to substantiate his allegations. [ ] Therefore, plaintiff's unsupported allegations cannot give rise to an issue of material fact sufficient to defeat a motion for summary judgement.) (citations omitted)). “In short, ‘[g]iven the lack of evidence that Plaintiff's appeal to CORC was ever filed, or ever followed up on, it is not that the full scope of administrative remedies was not available to Plaintiff – rather, Plaintiff failed to fully exhaust the administrative remedies available to him.’ ” Shabazz v. Bailey, No. 9:20-CV-00057 (LEK/TWD), 2023 WL 5779533, at *7 (N.D.N.Y. June 28, 2023), report and recommendation adopted, No. 9:20-CV-57 (LEK/TWD), 2023 WL 5622049 (N.D.N.Y. Aug. 31, 2023), aff'd, No. 23-7252, 2025 WL 272602 (2d Cir. Jan. 23, 2025) (quoting Houston v. Coveny, No. 14-CV-6609, 2020 WL 2494439, at *3 (W.D.N.Y. May 14, 2020) and citing Litchmore v. Williams, No. 11-CV-7546, 2013 WL 3975956, at *6 (S.D.N.Y. Aug. 5, 2013) (“no ‘sufficient basis in the record to find that administrative remedies were unavailable’ where, among other things, there was ‘no evidence here that the plaintiff's appeal was actually mailed, intercepted, or ignored’ and ‘DOCCS has no record of any appeal filed with CORC’ ”)). “If a prisoner has failed to properly follow each of the applicable steps before commencing litigation, he has failed to exhaust his administrative remedies.” Scott v. Uhler, No. 9:16-CV-403 (TJM/CFH), 2019 WL 5197139, at *5 (N.D.N.Y. July 31, 2019), report and recommendation adopted, 2019 WL 4667495 (N.D.N.Y. Sept. 25, 2019). Accordingly, the undersigned concludes that plaintiff has Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 169 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 failed to exhaust his administrative remedies in that he has not raised a material question of fact as to whether he appealed the Superintendent's denial of his grievance to CORC. Thus, the undersigned must next assess whether administrative remedies were available to plaintiff. 4. Availability of Administrative Remedies *8 New York law establishes a three-step grievance and appeal process for prisoners. See N.Y. Comp. Codes R. & Regs. tit. 7 (“7 N.Y.C.R.R.”), § 701.5. That process consists of the following: (1) “[a]n inmate must submit a complaint” with the Inmate Grievance Resolution Committee, id. § 701.5(a)-(b); (2) if the inmate disagrees with the response to the grievance, the inmate must “appeal to the superintendent,” id. § 701.5(c); and (3) if the inmate disagrees with the superintendent's findings, he must “appeal to the CORC ... within seven calendar days after receipt of the superintendent's written response to the grievance,” id. § 701.5(d). “A prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure.” Toussaint, 660 F. Supp. 2d at 523 (cleaned up). The statute also states, “[i]f 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.” 7 N.Y.C.R.R. § 701.5(d)(3). Foskey v. Paige, No. 9:20-CV-504 (LEK/TWD), 2024 WL 2109150, at *3 (N.D.N.Y. May 10, 2024). 2 Applying special solicitude, it is arguable that plaintiff is contending that administrative remedies were unavailable on several grounds, some of them conflicting. The Supreme Court of the United States has identified three circumstances in which a court may find administrative remedies are not “available” for PLRA purposes: First, ... an administrative procedure is unavailable when ... it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates.... Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some mechanism exists to provide relief, but no ordinary prisoner can navigate it .... And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. Ross, 578 U.S. at 643-44. The Second Circuit has interpreted these three circumstances as nonexhaustive as Ross focused on the “three kinds of circumstances that were ‘relevant’ to the facts of that case.” Williams v. Correction Officer Priatno, 829 F.3d 118, 124 n.2 (2d Cir. 2016) (citing Ross, 578 U.S. at 643). 5. Was the Grievance Process Opaque? a. Did Not Know How to Grieve First, plaintiff's deposition testimony suggests that he did not fully exhaust because was not sure how to complete the grievance process. He testified that he had been incarcerated in state facilities before his incarceration at Gouverneur in 2022 but never had filed a grievance before the ones he submitted in this action. Plaintiff admits that he attended Gouverneur's “shop facility orientation,” but states that he was unaware if he was taught how to exhaust administrative remedies because he did not pay attention. See Dkt. No. 26-5 at 102 The undersigned observes that the underlying incidents are alleged to have occurred on April 11, 2022. Plaintiff filed his four or five grievances in April 2022, which were consolidated. The Superintendent denied plaintiff's consolidated grievance on May 5, 2022. Plaintiff attended “shop facility orientation” from May 16, 2022, to May 22, 2022. See Dkt. No. 26-3 at 9. Plaintiff alleges to have appealed 3 to CORC within two days of receiving his denial, meaning this all occurred before he competed his facility orientation training regarding how to file and exhaust grievances on May 16-22, 2022. See Dkt. No. 25-3 at 16; Dkt. No. 26-3 at 9. *9 The undersigned assesses whether plaintiff's statement that he did not know how to grieve is sufficient to raise Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 170 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 a valid argument as to opaqueness. The Second Circuit recently explained the “opaqueness” exception to the PLRA's exhaustion requirement applies where “[t]he regulations simply do not contemplate the situation in which [the prisoner] found himself, making it practically impossible for him to ascertain whether and how he could pursue his grievance.” Williams v. Priatno, 829 F.3d 118, 124 (2d Cir. 2016). Liberally read, plaintiff's deposition testimony suggests that he did not understand the grievance procedure at any stage. However, even accepting as true that plaintiff did not fully understand what steps needed to be taken to exhaust his administrative remedies, plaintiff does not demonstrate that his ignorance of the grievance process rendered administrative remedies “opaque” as that term is contemplated by precedent. To the extent plaintiff appears to have testified that he did not know how to proceed with the grievance process, plaintiff conceded that he: was aware that a grievance process existed; knew he had to “follow the necessary steps. I have to follow these specific steps”; knew that if informal methods of resolution were unsuccessful, he should file a grievance; asked his “bunkie” to help him file grievances; filed at least four grievances with respect to the underlying incident; and hired a fellow inmate to assist him. Dkt. No. 26-5 at 79. “[S]ince Plaintiff was able to discern and navigate the first two steps of the grievance process, there is nothing to suggest that the third step, the appeal to CORC, was opaque to such a point that it became incapable of use.” Beauvoir v. Smith, No. 9:14-CV-1495 (MAD/DEP), 2017 WL 4271636, at *3 (N.D.N.Y. Sept. 26, 2017). Defendants submit records from Gouverneur demonstrating that plaintiff successfully completed shop facility orientation which included training on how to file a grievance and exhaust administrative remedies. When asked about such training, plaintiff gave vague and dismissive answers, suggesting he was unsure if he learned about how to proceed with a grievance and the various steps required because he did not pay attention, believing that it was not relevant to him and/or because he did not have a sufficient attention span to focus. Plaintiff testified that he did not know how to grieve and properly exhaust his grievance does demonstrate that administrative remedies were unavailable to him. Plaintiff concedes that he attended the orientation, but that he was unsure if he was taught how to proceed through the grievance process because he did not pay attention as he felt the information was not relevant to him or he zoned out due to attention span issues. Similarly, when confronted at his deposition with the fact that the Superintendent's denial of his grievance included instructions that advised him that if he wished to appeal the denial, he was to sign and return the appeal section to the IGRC, plaintiff did not deny that the form contained such instruction, but responded that he was “not even sure” where he sent the appeal and was “pretty sure I sent it to the grievance. I am not sure where it went, man. I know I sent it out. I did every little piece of paperwork I was supposed to do.” Dkt. No. 26-5 at 97-99. Plaintiff's choosing not to pay attention to the training needed to learn how to exhaust or declining to seek assistance does not demonstrate that the grievance process was “essentially unknowable.” Hill v. Tisch, No. 02-CV-390, 2016 WL 6991171, at *7 (E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to demonstrate that the grievance “procedures were essentially unknowable”). It demonstrates that plaintiff actively chose against educating himself or allowing his facility to educate him as to the grievance procedure. *10 The undersigned recognizes that plaintiff's orientation took place after he filed his grievances and received the Superintendent's denial. Thus, although he may have been untrained regarding the grievance process at the time he filed his grievances and received the Superintendent's denial, he attended such training by May 22, 2022, at the latest. Upon completing the orientation, he could have reached out to the IGRC or CORC and requested an extension 4 of time to appeal to CORC, citing mitigating circumstances, but failed to do so. See 7 NYCRR § 701.6(g); 5 see generally Valverde v. Folks, No. 1:19-CV-08080-MKV, 2022 WL 836310, at *7 (S.D.N.Y. Mar. 21, 2022) (“As such, it is possible that if Plaintiff had sought an extension to file an appeal from CORC, he could have received one. Plaintiff never did so.”), aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10, 2023). Plaintiff's failure to avail himself of the grievance procedure is based on his ignorance of the training and failure to seek out resources rather than the opacity of the procedure. “Courts within the Second Circuit are split regarding whether a failure to respond by CORC constitutes unavailability excusing a plaintiff's failure to exhaust.” High v. Switz, No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3736794, at *4 (N.D.N.Y. July 9, 2018), report and recommendation adopted sub nom. High v. PA Switz, No. 9:17-CV-1067 (LEK/DJS), 2018 WL 3730175 (N.D.N.Y. Aug. 6, 2018). Indeed, the Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 171 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 regulations “ ‘do not describe a mechanism’ for appealing or advancing a grievance when a grievant does not receive a response from CORC.” Id. at *5 (quoting Williams, 829 F.3d at 124). Plaintiff's case differs from those in which courts held administrative remedies were unavailable where a plaintiff appealed to CORC, but CORC never responded or failed to respond within a reasonable period of time. See, e.g., High, 2018 WL 3736794, at *4 (exclusing the plaintiff's failure to exhaust where the plaintiff appealed to CORC but never received a response, finding administrative remedies were unavailable when CORC failed to respond). Unlike in those cases, 6 where the Court found that administrative remedies were unavailable because the regulations did not explain what an inmate should do if he appealed to CORC but receives no response, in those cases there did not appear to be a question whether the plaintiffs actually appealed to CORC. Here, plaintiff presents no details nor any proof of his alleged appeal to CORC beyond his conclusory claim during his deposition. He testified that he appealed the Superintendent's denial, but offered conflicting testimony over where the appeal was sent – either to the Attorney General's Office or another agency “in Albany” or to the IGRC, did not provide a copy of the appeal, and did not indicate that he ever attempted to follow up with CORC or the IGRC after failing to receive any response from his appeal. See Valverde v. Folks, No. 1:19-CV-08080 (MKV), 2022 WL 836310, at *8 (S.D.N.Y. Mar. 21, 2022), aff'd, No. 22-848-PR, 2023 WL 2439876 (2d Cir. Mar. 10, 2023) (“Here, unlike Williams [v. Priatno], Plaintiff concedes that his initial grievance was processed and answered. [ ] .... Plaintiff had an avenue to appeal the denial of his grievance, however he filed the appeal form improperly and it does not appear that he made any attempt to ever ask the grievance supervisor for confirmation that his appeal was received.”). *11 Plaintiff proffered no argument or evidence that he “received written notice that the appeal was filed or that he attempted to contact CORC of the IGRC ... regarding the status of his appeal before commencing this action.” Bowie v. Woodruff, No. 9:1-8CV-0266 (BKS/ML), 2019 WL 7606078, at *6 (N.D.N.Y. Sept. 20, 2019), report and recommendation adopted, No. 9:18-CV-00266 (BKS/ML), 2019 WL 5445519 (N.D.N.Y. Oct. 23, 2019) (citing Fox v. Lee, 9:15-CV-0390 (TJM/CFH), 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.’ ”) vacated in part on other grounds 2023 WL 7481423 (2d. Cir. Nov. 13, 2023); see § 701.5(d)(3)(i) (noting that the IGRC dates all CORC appeals and will forward the inmate a copy of the receipt, and that “[i]f 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.”). Indeed, “[t]he record is devoid of any indication that Plaintiff followed up with the [facility] IGP supervisor ‘to confirm that the appeal was filed and transmitted to CORC’ when he did not receive written confirmation within forty-five days that his appeal was received.” Shabazz, 2023 WL 5779533, at *7 (quoting 7 N.Y.C.R.R. § 701.5(d)(3) (i) and citing Simpson v. Price, No. 9:19-CV-1413 (MAD/ ATB), 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29, 2021)) (“granting summary judgment on exhaustion grounds where plaintiff ‘provided no specifics regarding when the grievances were written, their content, or the steps he took to provide them to an officer to send to the grievance office’ and there was no documentary evidence to corroborate the fact plaintiff attempted to file a grievance, such as follow-up correspondences.”); see Gizewski v. N.Y. State Dep't of Corr. & Cmty. Supervision, No. 9:14-CV-124, 2016 WL 3661434, at *13 (N.D.N. Y July 5, 2016) (concluding that the plaintiff did not exhaust his administrative remedies because he failed to take further action under § 701.5(d)(3)(i) when he did not receive written notice of receipt by the CORC within 45 days of filing his appeal; he did not contact the Inmate Grievance Program to ascertain whether CORC received his appeal), aff'd, 692 F. App'x 668 (2d Cir. 2017)). By contrast, defendants produce records from both Gouverneur and DOCCS, along with declarations from the officials who maintain such records, showing that they have no record of plaintiff having ever filed an appeal of the Superintendent's denial of his grievance. See Dkt. Nos. 26-3, 26-4 at 7-8. Accordingly, plaintiff has failed to demonstrate that his lack of understanding of grievance process amounts to the grievance process being so opaque to be rendered incapable of use. b. Transfer Further, plaintiff's transfer from Gouverneur to Cayuga “does not excuse his failure to exhaust, as the grievance process is identical in all New York state-run facilities.” Campbell v. Prue, No. 9:16-CV-0004 (MAD/CFH), 2018 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 172 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 WL 4635708, at *5 (N.D.N.Y. July 3, 2018), report and recommendation adopted, No. 9:16-CV-0004 (MAD/CFH), 2018 WL 3574871 (N.D.N.Y. July 25, 2018) (citing Hartry v. Cnty. of Suffolk, 755 F.Supp. 2d 422, 434 (E.D.N.Y. 2010)) (“[S]ome courts [ ] have found that transfer within correctional facilities governed by the same governmental agency will not excuse exhaustion, regardless of whether the inmate had an opportunity to pursue the remedy while at the facility where the claim arose.”) (additional citations omitted). Plaintiff testified at his deposition that he did not attempt to follow up on his grievance after being transferred to Cayuga. Plaintiff offered conflicting testimony for his reasoning behind declining to follow up once he reached Cayuga. First, plaintiff testified that he did not follow up at Cayuga regarding his grievance because he did not know he was supposed to follow up there. However, he later testified that he decided not to pursue his grievance once at Cayuga because he wanted to be able to serve out his time at Cayuga without being “noticed.” Dkt. No. 26-5 at 101. Second, plaintiff made clear that he was not in any fear while incarcerated at Cayuga. Thus, he was not prevented from pursuing his grievance at Cayuga. Further, as noted, plaintiff received the Superintendent's denial of his grievance on May 5, 2022, and remained at Gouverneur until June 13, 2022, giving him sufficient time to pursue an appeal at Gouverneur before his transfer. See Dkt. No. 26-2 at 2. Plaintiff's conclusory and conflicting statements that he did not know how to use the grievance procedure fails to demonstrate that, as a result of his transfer to Cayuga, administrative remedies were so opaque they were rendered incapable of use. 6. Grievance Process as a Dead End *12 Plaintiff testified that he did not know the next step he was supposed to take when he did not receive a response from his alleged appeal to CORC. Plaintiff further testified that he filed a fifth grievance regarding “medical” while at Gouverneur but that he did not receive a response. Dkt. No. 26-5 at 94-95. Applying a very liberal reading of this testimony, plaintiff's statements could be interpreted as arguing that the grievance procedure operated as a “dead end.” However, plaintiff's testimony on this point fails to raise a material question of fact for the reasons discussed below. Courts have rejected arguments that the grievance procedure was a “dead end” where the plaintiffs chose to participate in the grievance procedure in some way, even in unrelated matters, concluding that such participation demonstrates that the plaintiffs did not view the grievance procedure as a dead end. See Luke Matthews, et al. v. L. Sweeny, Clinton Corr. Sergeant, et al., No. 9:17-CV-0503 (GTS/ML), 2025 WL 447734, at *7, *7 n.13 (N.D.N.Y. Feb. 10, 2025) (citing Walker v. Ball, 16-CV-0437, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018)) (“While Plaintiff did not file any grievances regarding the alleged misconduct of Noonan and St. Johns ..., he did file grievances regarding other issues .... This shows that Plaintiff did not view the filing of grievances as a dead end.”), report recommendation adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (and others); see Barrett v. Ballard, No. 9:23-CV-113 (DNH/ DJS), 2024 WL 4627511, at *4 (N.D.N.Y. Oct. 4, 2024), report and recommendation adopted, No. 9:23-CV-113, 2024 WL 4627801 (N.D.N.Y. Oct. 30, 2024) (“Plaintiff makes no argument that the grievance process was unavailable to him and cannot carry that burden especially since he claims that he did, in fact pursue, at least at the outset, to resolve this issue through the grievance process.”). Here, plaintiff filed at least four grievances regarding the issues underlying this complaint; thus, any argument suggesting that he believed the grievance procedure to be a dead end is without force. To the extent plaintiff's testimony that he filed a fifth grievance that went “missing” could suggest that he believed the grievance process was a dead end, “Courts within the Second Circuit have continuously held that ‘mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations.’ ” Blake v. Porlier, No. 9:18-CV-1008 (DNH/CFH), 2019 WL 7484052, at *5 (N.D.N.Y. Oct. 4, 2019) (quoting Rodriguez v. Cross, No. 9:15-CV-1079 (GTS/CFH), 2017 WL 2791063, at *5 (N.D.N.Y. May 9, 2017) report and recommendation adopted, 2017 WL 1076343 (N.D.N.Y. Mar. 22, 2019)). Plaintiff offers no proof that he filed a fifth grievance relating to the matters underlying this suit or any support for his conclusory claim that the fifth grievance was filed and went missing. See Rodriguez, 2017 WL 2791063, at *5 n.13 (finding that the plaintiff's failure to exhaust was not excused because, although the plaintiff “state[d] that some grievances were destroyed ... he ha[d] not submitted any copies of these grievances, nor d[id] he specify when he attempted to file them.”). In sum, the undersigned concludes that plaintiff has failed to demonstrate a material question of fact as to whether Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 173 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 the grievance process amounted to a “dead end” such that administrative remedies were unavailable to him. 7. Fear Plaintiff testified that he was in fear for his life while he was incarcerated at Gouverneur. See Dkt. No. 26-5 at 99. When asked for clarification as to whether he was afraid to file a grievance, plaintiff stated, “Grievance? I was – was more fearful for my life.” Id. Plaintiff testified, however, that he was not in fear once he was transferred to Cayuga. See id. at 100. He testified that he did not pursue his grievance after not receiving a response to his alleged appeal because he did not know he was “supposed to” but also because he “didn't want the whole state against me, man. I didn't want to leave one jail and then go to another jail and I got the police all over me there neither. So I wanted to like kind of fly under the radar.” Id. at 101. *13 Administrative remedies may be unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860. However, a generalized fear of retaliation is insufficient to overcome a failure to exhaust administrative remedies. Salmon v. Bellinger, No. 9:14-CV-0827 (LEK/DJS), 2016 WL 4411338, at *5 (N.D.N.Y. July 5, 2016). Estoppel is found where “verbal and physical threats of retaliation, physical assault, denial of grievance forms or writing implements, and transfers” occur showing that defendants acted affirmatively to prevent an inmate from availing him or herself of the grievance procedures. Id. at *5 (quoting Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011)). Pridgen v. Beatie, No. 9:16-CV-535 (DNH/CFH), 2018 WL 1402049, at *8 (N.D.N.Y. Jan. 17, 2018), report and recommendation adopted, No. 9:16-C-V535 (DNH/CFH), 2018 WL 1394146 (N.D.N.Y. Mar. 19, 2018). Here, plaintiff's generalized, conclusory arguments about being in fear while at Gouverneur fail to state a viable unavailability argument under the “machination, misrepresentation, or intimidation” exception. Ross, 136 S. Ct. at 1860. Plaintiff does not assert that any specific individual at Gouverneur prevented him from filing an appeal by threatening or intimidating him. Plaintiff offers no argument or proof that defendants or other prison officials “affirmatively or misleadingly prevented Plaintiff from filing the appeal to CORC” or otherwise pursuing his administrative remedies.” Shabazz, 2023 WL 5779533, at *7. Further, when asked if he were afraid of filing a grievance, his response suggested that he was fearful, generally, during his time at Gouverneur, and suggested that he was not specifically afraid of proceeding with his grievance. See Dkt. No. 26-5 at 99. Significantly, the undisputed facts in this case belie any claims of fear. Plaintiff filed four – and argues he filed five – grievances at Gouverneur, defeating an argument that he was too afraid for his life to take advantage of his administrative remedies. See, e.g., McNab v. Doe, 686 F. App'x 49, 51 (2d Cir. 2019) (summary order) (affirming summary judgment dismissing the plaintiff's complaint for failure to exhaust where although the plaintiff asserted that the defendants tried to intimidate him because “none of the actions allegedly taken by the defendants actually prevented [him] from submitting his complaint letter.”); Riles v. Buchanan, 656 F. App'x 577, 581 (2d Cir. 2016) (summary order) (finding that the defendants’ alleged threats of retaliation did not interfere with the plaintiff's exhaustion efforts because, following a threat, the plaintiff “thereafter submitted ... [a] grievance in spite of this alleged threat”); Hall v. Annucci, No. 19- CV-5521 (KMK), 2022 WL 3903255, at *10 (S.D.N.Y. Aug. 30, 2022), aff'd, No. 22-2031, 2023 WL 7212156 (2d Cir. Nov. 2, 2023) (“[w]here an inmate files a grievance or appeals a grievance determination after having received threats or suffered retaliation, the inmate's conduct ‘directly cuts against’ ... [an] argument that ... administrative remedies were unavailable.”) (citation omitted). *14 Accordingly, the undersigned concludes that plaintiff fails to demonstrate that administrative remedies were unavailable to him on the ground that “prison administrators thwart[ed] [him] from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 643-44. C. Doe Defendants The undersigned observes that plaintiff has failed to identify or serve process on John Does 1-8, as required by Rule 4(m) and N.D.N.Y. Local Rule 4.1, despite having ample time and opportunity. Plaintiff commenced this action on March 8, 2023. See Compl. Discovery in this action expired in March 2024. See Dkt. No. 22. Plaintiff has had a substantial amount of time to identify and serve the Doe defendants, “and the Court is under no obligation to extend the deadline Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 174 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 indefinitely.” Santiagocruz v. Doe #4, No. 9:21-CV-0806 (TJM/ML), 2023 WL 9600956, at *1 n.1 (N.D.N.Y. Dec. 15, 2023), report and recommendation adopted sub nom. Santiagocruz v. Gordon, No. 9:21-CV-806, 2024 WL 532499 (N.D.N.Y. Feb. 8, 2024) (citation omitted); see Waldo v. Goord, 97-CV-1385, 1998 WL 713809, at *5 (N.D.N.Y. Oct. 1, 1998) (Kahn, J.) (dismissing claims against Doe defendants pursuant to Fed. R. Civ. P. Rule 4(m) where the pro se plaintiff failed to serve the Doe defendants within a year of commencing the action). “All discovery is complete and thus, [P]laintiff's failure to identify the ‘John Doe’ defendant[s] mandates dismissal.” Epps v. City of Schenectady, No. 10-CV-1101, 2013 WL 717915, at *5 (N.D.N.Y. Feb. 27, 2013). Accordingly, the undersigned recommends sua sponte dismissal of defendants John Does 1-8 from this action without prejudice. D. Dismissal The Second Circuit has “recognized that failure to exhaust administrative remedies is usually a ‘curable, procedural flaw’ that can be fixed by exhausting those remedies and then reinstituting the suit.” Neal v. Goord, 267 F.3d 116, 123 (2d Cir. 2001) (quoting Snider v. Melindez, 199 F.3d 108, 111-12 (2d Cir. 1999)), overruled on other grounds by Porter v. Nussle, 534 U.S. 516 (2002). Thus, where a claim is dismissed for failure to exhaust administrative remedies, dismissal without prejudice is appropriate if the time permitted for pursuing administrative remedies has not expired. Berry v. Kerik, 366 F.3d 85, 86-87 (2d Cir. 2004); see Pettus v. McCoy, 04-CV-0471, 2006 WL 2639369, at *1-2 (N.D.N.Y. Sept. 13, 2006) (dismissing a complaint without prejudice for failure to exhaust). However, if a prisoner has failed to exhaust available administrative remedies and the time in which to exhaust has expired, it is proper for the court to dismiss the complaint with prejudice because any attempt to exhaust would be futile. See Berry v. Kerik, 366 F.3d 85, 86 (2d Cir. 2004); see, e.g., Hilbert v. Fischer, 12-CV-3843, 2013 WL 4774731, at *7 (S.D.N.Y. Sept. 5, 2013) (collecting cases). Here, plaintiff received the Superintendent's denial on May 3, 2022, and he commenced this action March 8, 2023. As plaintiff's time to exhaust his administrative remedies has expired, it is recommended that his complaint be dismissed with prejudice. IV. Conclusion WHEREFORE, for the reasons set forth herein, it is hereby RECOMMENDED, that defendants’ West and Fenlong's Motion for Summary Judgment, Dkt. No. 26, be GRANTED in its entirety with prejudice; and it is further *15 RECOMMENDED, that the claims against the Doe defendants be DISMISSED without prejudice based on plaintiff's failure to timely identify and serve those defendants; and it is ORDERED, that the Clerk serve this Report- Recommendation & Order on the parties in accordance with the Local Rules. IT IS SO ORDERED. Pursuant to 28 U.S.C. 636(b)(1) and Local Rule 72.1(c), the parties have fourteen 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. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e). 7 All Citations Slip Copy, 2025 WL 1033787 Footnotes Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 175 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 1 Unless otherwise noted, the Court has provided plaintiff with copies of all unpublished cases cited herein. 2 As in this case, There are ... special procedures that may be used when the grievance involves a claim of staff misconduct. Id. § 701.8. A grievance alleging staff misconduct, once it is recorded and given a number, must be sent directly to the Superintendent, and the Superintendent must issue a decision within twenty-five days. Id. § 701.8(f). If the grievant wishes to appeal a decision by the Superintendent to CORC, he must file a notice of decision to appeal with the inmate grievance clerk at the bottom of the Superintendent's decision within seven days of receipt of the decision. Id. § 701.8(h). CORC is required to render a written decision within thirty calendar days of receipt of the appeal. Id. § 701.8(i) (incorporating § 701.5). Ayers v. Trombley, No. 9:17-CV-01229 (DNH/TWD), 2019 WL 3892864, at *10 (N.D.N.Y. July 8, 2019), report and recommendation adopted, No. 9:17-CV-1229 (DNH/TWD), 2019 WL 3891027 (N.D.N.Y. Aug. 19, 2019). 3 As concluded, supra, the undersigned has found that plaintiff failed to demonstrate that he appealed the Superintendent's denial to CORC. 4 The regulations provide that an individual who wishes to appeal a Superintendent's denial in the expedited procedure has seven calendar days after receipt of the denial to do so. See 7 N.Y.C.R.R. 701.6(h)(2). The Superintendent's denial of his grievance is dated May 5, 2022. It is unclear when he received the Superintendent's denial, but the undersigned recognizes that his training likely came after the seven-day period had expired. However, plaintiff demonstrates that his absence of formal training at Gouverneur did not stop him from successfully navigating the grievance procedure at the earlier stages. 5 A request for an extension of time to file an appeal to CORC may be requested in writing, but “an exception to the time limit may not be granted if the request was made more than 45 days after an alleged occurrence.” N.Y. Comp. Codes R. & Regs. tit. 7, § 701.6(1)(i)(a), (b). An inmate may choose to file a separate grievance if a request for an extension is denied. See id. § 701.6(1)(i)(b). Plaintiff completed the shop facility orientation on May 22, 2022, within forty-five days after the alleged occurrence on April 11, 2022. Thus, even if he was untrained on how proceed with the grievance process after receiving the Superintendent's denial until after he completed training, he still had time to request an extension to do so after receiving training. In such training, he would have likely also been advised to write to CORC or the IGRC if he did not receive confirmation of receipt of an appeal. 6 Further, in some cases addressing unavailability when an appeal to CORC is unanswered, the court found administrative remedies unavailable where the inmate plaintiff was transferred before receiving a response; here, however, plaintiff received the Superintendent's denial before being transferred and remained at Gouverneur for over a month after receipt of the denial. See, e.g., Robinson v. Ballard, 9:13-CV-01213 (TJM/ TWD), 2017 WL 979047, at *12 (N.D.N.Y. Feb. 3, 2017), report and recommendation adopted, 2017 WL 979039 (N.D.N.Y. Mar. 13, 2017) (citing Williams v. Priatno, 829 F.3d 118 (2d Cir. 2016)) (“as in Williams, Plaintiff in this case was transferred to a new facility before receiving a response to his grievance and failed to receive a response after the transfer.”); See Dkt. No. 26-2 at 2. 7 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Report-Recommendation & Order was mailed to you to serve and file objections. See 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. See id. § 6(a)(1)(C). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 176 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 177 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 814966 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Craig A. JACKSON, Plaintiff, v. Sergeant WEST, et al., Defendants. 9:23-CV-306 (LEK/PJE) | Signed March 14, 2025 Attorneys and Law Firms Craig A. Jackson, Moravia, NY, Pro Se. Alexandra L. Galus, Anthony Huntley, Lauren Rose Rosenberg, NYS Office of the Attorney General, Albany, NY, for Defendants Sergeant West, D. Fenlong. MEMORANDUM-DECISION AND ORDER LAWRENCE E. KAHN, United States District Judge I. INTRODUCTION *1 Plaintiff Craig A. Jackson brings this pro se action pursuant to 42 U.S.C. § 1983 against Defendants Sergeant West, D. Fenlong, and eight John Does, asserting violations of his constitutional rights. Dkt. No. 1. Defendants West and Fenlong filed a motion for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies before commencing this action. Dkt. No. 26 (“Motion”). On February 20, 2025, the Honorable Paul Evangelista, United States Magistrate Judge, issued a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d), recommending that the Motion be granted. Dkt. No. 30 (“Report and Recommendation”). No party has filed objections to the Report and Recommendation. For the reasons that follow, the Court adopts the Report and Recommendation in its entirety. II. BACKGROUND The Court assumes familiarity with the factual background detailed in the Court's April 18, 2023 Memorandum-Decision and Order. See Dkt. No. 4 at 2–3. In his analysis, Judge Evangelista first noted that Plaintiff filed four grievances relating to the staff assault that occurred in April 2022. Id. at 8. Those grievances were consolidated into one, id., which was denied on May 5, 2022, id. at 9. Judge Evangelista then explained that Plaintiff was informed that he could appeal the decision to the Superintendent of his facility, but the records reveal that he never did so. Id. While Plaintiff testified that he did file an appeal, Judge Evangelista found Plaintiff's testimony to be “littered with contradictions and lack[ing] support,” such that there was no genuine dispute of fact on this issue. Id. at 15. He concluded that Plaintiff did not exhaust his administrative remedies. Id. at 17. Judge Evangelista then examined whether the grievance process was “unavailable” to Plaintiff, such that Plaintiff may be excused from the exhaustion requirement. Id. at 19–31. First, Judge Evangelista found that “[P]laintiff has failed to demonstrate that his lack of understanding of [the] grievance process amounts to the grievance process being so opaque to be rendered incapable of use.” Id. at 25–26. Next, Judge Evangelista found that “[P]laintiff has failed to demonstrate a material question of fact as to whether the grievance process amounted to a ‘dead end’ such that administrative remedies were unavailable to him.” Id. at 29. Lastly, Judge Evangelista explained that “Plaintiff fails to demonstrate that administrative remedies were unavailable to him on the ground that prison administrators thwarted him from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 31 (cleaned up). Judge Evangelista thus recommended that the Motion be granted in its entirety. Id. at 33. Further, Judge Evangelista recommended that the Court sua sponte dismiss Plaintiff's claims against the eight John Does, because discovery has completed and Plaintiff failed to identify the defendants. Id. at 31–32. III. LEGAL STANDARD “Within fourteen days after being served with a copy [of the Magistrate Judge's report and recommendation], any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court.” 28 U.S.C. § 636(b)(1)(C); see also L.R. 72.1. However, if no objections are made, a district court need only review a report and recommendation for clear error. See DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009) (“The district court may adopt those portions of a report and recommendation to which no timely objections have been Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 178 of 300
Jackson v. West, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 made, provided no clear error is apparent from the face of the record.”). Clear error “is present when upon review of the entire record, the court is left with the definite and firm conviction that a mistake has been committed.” Rivera v. Fed. Bureau of Prisons, 368 F. Supp. 3d 741, 744 (S.D.N.Y. 2019) (cleaned up). Upon review, a court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). IV. DISCUSSION *2 No party objected to the Report and Recommendation within fourteen days after being served with a copy of it. Accordingly, the Court reviews the Report and Recommendation for clear error. See DiPilato, 662 F. Supp. 2d at 339. Having found none, the Court approves and adopts the Report and Recommendation in its entirety. V. CONCLUSION Accordingly, it is hereby: ORDERED, that the Report and Recommendation, Dkt. No. 30, is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that the motion for summary judgment, Dkt. No. 26, is GRANTED; and it is further ORDERED, that the Clerk close this action; and it is further ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. IT IS SO ORDERED. All Citations Slip Copy, 2025 WL 814966 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 179 of 300
James v. Phillips, Not Reported in F.Supp.2d (2008) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Distinguished by McLean v. Cottrell, N.D.N.Y., April 17, 2023 2008 WL 1700125 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Henry JAMES, Plaintiff, v. William PHILLIPS, et al., Defendants. No. 05 Civ. 1539(PKC)(KNF). | April 9, 2008. MEMORANDUM AND ORDER P. KEVIN CASTEL, District Judge. *1 This is an action brought by plaintiff Henry J. James who alleges that, while incarcerated at the Green Haven Correctional Facility (“Green Haven”), he was subjected to excessive force on two occasions, May 22, 2003 and October 31, 2003. He also alleges that defendants were deliberately indifferent to his serious medical needs and retaliated against him by canceling a medical appointment. Defendants have moved for partial summary judgment on all claims, except claims against the individual corrections officers arising out of the October 31, 2003 incident. For the reasons set forth herein, the motion is granted in part and denied in part. I. Because plaintiff is the non-movant, I accept his version of the facts and such other facts tendered by defendants as are undisputed by plaintiff. All reasonable inferences are drawn in plaintiff's favor. I will describe each of the incidents or circumstances which are said to give rise to liability. A. The May 22, 2003 Incident On May 22, 2003, plaintiff was escorted back to his cell by defendant Nagy, a corrections officer. Nagy told plaintiff that he was “talking loud while ... standing in the hallway.” (P. Dep.6.) Green Haven “has a rule that conversations must be in a conversational tone.” (Id.) Plaintiff disputed Nagy's claim that he was speaking loudly. (Id.) Nagy instructed him to “step off the line.” (Id.) He was instructed to sit on a bench and empty his pockets. (Id. at 7.) Then, he was instructed to stand. (Id.) Sergeant Smalldone told Nagy to escort plaintiff “back to the block.” (Id.) As plaintiff and Nagy were walking back to plaintiff's cell, plaintiff observed an officer conducting the “medication run” and he asked Nagy whether he could get his medication. (Id. at 7–8.) In the presence of Smalldone, Nagy declined, saying “something to the effect of, ‘too bad’.” (Id. at 8.) Thereafter, Nagy escorted plaintiff to his cell and “began to grab [plaintiff] in an abrupt manner, [and] shoved [him] into the gate.” (Id. at 10.) At his deposition, plaintiff described the incident in the following words: J block housing, you have doors to the cell. You have to turn the knob to get into the door. I kept my hands in my pockets. As we go into the door, he is still holding onto my left side, he slammed me into the door. That's when I hit my chin, when he slammed me into the door. At that time, Officer Gordon and, I believe, Officer Woods, they was working the housing unit. So when we entered the company, they began to follow behind us to escort me clown. So now there are four officers. When he slammed me into the door, Officer Gordon says, “It's open.” So he reached and opened the door. That's when Officer Nagy grabbed me and pushed me with a hard, hard shove and pushed me into the cell. When I went into the cell, my knee—as you come into the cell, the toilet is immediately to the right when you come in—I hit my knee on the metal toilet .... (Id. at 10–11.) *2 Plaintiff had no interaction with Nagy prior to the incident on May 22. (Id. at 21.) Plaintiff asserts that Corrections Officer Gordon was present when plaintiff was shoved and took no action to prevent Nagy from acting. With respect to his chin, plaintiff asserts that he had “swelling on my chin. But outside of that, there was no more physical injuries, outside of that.” (Id. at 19.) With respect to his knee, plaintiff acknowledges that he had a preexisting knee condition which he described as “bipatella” or a “double knee.” He described it as a “natural birth defect.” (Id. at 18.) He states that before the May 22 incident he would get “stiffness or something like that” when he played sports. He would rub Bengay on it. (Id.) After the impact with Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 180 of 300
James v. Phillips, Not Reported in F.Supp.2d (2008) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 the toilet on May 22, he was told by a medical specialist at Green Haven that “it might have resulted in damage to the outer” patella. (Id.) Plaintiff stated in his deposition that his leg became hard to flex or he would experience swelling. The specialist recommended physical therapy and he, indeed, obtained the physical therapy. (Id. at 37.) Plaintiff asserts that he needed knee surgery as a result of the May 23 incident, but it appears that the October 31 incident in which his knee was injured intervened before any such surgery. B. The October 31, 2003 Incident On October 31, 2003, plaintiff asserts that he was assaulted by defendants Kiernan, Tillotson, Czyzewski, Miller and Austin in the shower area of the Special Housing Unit (“SHU”). (Id. at 26–32.) Plaintiff asserts that the incident was prompted by his frequent complaints and grievances about conditions in the SHU. Defendant Phillips is alleged to have failed to have implemented a policy requiring special escorts of a prisoner to the SHU shower area. Defendants make no motion with respect to the excessive force claims against the corrections officers arising out of this incident. Plaintiff also asserts that defendants Phillips, Bushey, Kiernan, Tillotson, Miller, Austin and Czyzewski denied plaintiff medical aid for an unreasonable and excessive period of time in order to make plaintiff suffer. C. November 14 Cancellation Plaintiff alleges that defendant Mamis cancelled his follow- up appointment with “physiatry”—physical therapy—for his right knee on November 14, 2003 in retaliation for plaintiff having made complaints and filing a grievance. He asserts that Dr. Koeningsmann covered up and condoned the action of his subordinate. Plaintiff also claims that defendant Phillips failed to remedy the wrong, despite being in a position to do so. II. Summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Rule 56(c), Fed.R.Civ.P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, demonstrating that he or she is entitled to relief. A fact is material if it “might affect the outcome of the suit under the governing law ....“ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The evidence on each material element must be sufficient to entitle the movant to relief in its favor as a matter of law. Vt. Teddy Bear Co. v. 1–800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004). *3 When the moving party has met this initial burden and has asserted facts to demonstrate that the non-moving party's claim cannot be sustained, the opposing party must “set out specific facts showing a genuine issue for trial,” and cannot rest “merely on allegations or denials” of the facts asserted by the movant. Rule 56(e)(2), Fed.R.Civ.P. In raising a triable issue of fact, the non-movant carries only “a limited burden of production,” but nevertheless “must ‘demonstrate more than some metaphysical doubt as to the material facts' and come forward with ‘specific facts showing that there is a genuine issue for trial.’ “ Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir.2004) (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir.1993)). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. The Court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact could find in favor of the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.1995) (internal quotations and citations omitted); accord Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587–88 (1986). In reviewing a motion for summary judgment, the court must scrutinize the record, and grant or deny summary judgment as the record warrants. Rule 56(c), Fed.R.Civ.P. In the absence of any disputed material fact, summary judgment is appropriate. Id. “[W]hen the plaintiff proceeds pro se, as in this case, a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations.” Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir.2005) (quoting Shakur v. Selsky, 391 F.3d 106, 113 (2d Cir.2004)); see also Muntaqim v. Coombe, 366 F.3d 102, 105 n. 3 (2d Cir.2004), vacated on other grounds, 449 F.3d 371 (2006) (stating pro se pleadings should be read “liberally and interpret[ed] ... to raise the strongest arguments that they suggest”) (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999)). Nevertheless, proceeding pro se does not otherwise relieve a litigant Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 181 of 300
James v. Phillips, Not Reported in F.Supp.2d (2008) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 from the usual requirements of summary judgment, and “a pro se party's ‘bald assertion,’ completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment.” See Odom v. Keane, 95 Civ. 9941, 1997 WL 576088, at *3 (S.D.N.Y. Sept. 17, 1997) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1995)). Specifically, mere “conclusory statements, conjecture, or speculation by the party resisting the motion will not defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir.1996) (citing Matsushita, 475 U.S. at 587 (1986)); see also Anderson, 477 U.S. at 249–50 (noting that summary judgment may be granted if the evidence is “merely colorable” or “not significantly probative”) (citations omitted). III. *4 The Eighth Amendment, which is made applicable to the states through the Fourteenth Amendment, Estelle v. Gamble, 429 U.S. 97, 101–02 (1976), is violated by unnecessary and wanton inflictions of pain and suffering, Whitley v. Albers, 475 U.S. 312, 320 (1986). The test of whether prison officials have violated the Eighth Amendment by using excessive force is “whether force was applied in a good faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992). The Eighth Amendment is also violated by a prison official's “ ‘deliberate indifference’ to a substantial risk of serious harm to an inmate.” Farmer v. Brennan, 511 U.S. 825, 828 (1994). A claim arising under this theory “requir[es] a showing that the official was subjectively aware of the risk.” Id. To establish an excessive force claim, an inmate must satisfy both subjective and objective tests. Hudson at 7–8. To satisfy the subjective test, the inmate must show that the prison officials “had a ‘wanton’ state of mind when they were engaging in the alleged misconduct.” Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir.1994) (citing Hudson, 503 U.S. at 7). In analyzing whether such a showing has been made, courts may consider; “the need for the application of force, the relationship between that need and the amount of force used, the threat ‘reasonably perceived by the responsible officials' and ‘any efforts made to temper the severity of a forceful response.’ “ Hudson, 503 U.S. at 7 (quoting Whitley, 475 U.S. at 321). To satisfy the objective test, the inmate must show that the force applied was “sufficiently serious” to establish a constitutional violation. Farmer, 511 U.S. at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) (additional citations omitted)). This inquiry is “context specific, turning upon ‘contemporary standards of decency.’ “ Griffin v. Crippen, 193 F.3d 89, 91 (2d Cir.1999) (quoting Blyden v. Mancusi, 186 F.3d 252, 263 (2d Cir.1999)). One of the factors to be considered is the nature and seriousness of any injury. See Branham v. Meachum, 77 F.3d 626, 630 (2d Cir.1996). Although “a de minimis use of force will rarely suffice to state a constitutional claim,” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993) (citation omitted), a plaintiff “need not prove ‘significant injury’ to make out an excessive force claim ....“ Griffin, 93 F.3d at 92. As to the May 22 incident, plaintiff fails both tests. With respect to a wanton state of mind, there was concededly no interaction between Nagy and plaintiff prior to the date of the incident. This is not a case where the officer and the inmate had a history of unpleasant interactions. By the time Nagy was escorting plaintiff to his cell, there was no apparent need for the use of force of any kind. Yet, plaintiff's testimony, if believed, amounts to nothing more than a shove in the direction of the cell door. Plaintiff was not handcuffed at the time. No reasonable jury could conclude that Nagy acted maliciously or sadistically to cause harm. This was not an on- going effort to restrain a prisoner but a momentary push or shove. Thus, on this record, Nagy's shove could not have been reasonably anticipated by Gordon or Smalldone. I conclude that no reasonable jury could find in plaintiff's favor against Nagy, Gordon or Smalldone on the subjective prong. *5 Plaintiff's claims also fail the objective prong. True, plaintiff need not show a significant injury but he must come forward with more than a de minimis use of force. In this case, there was nothing more than a shove of an inmate who was not then handcuffed. The swelling to the chin did not amount to much. (P. Dep. 19; “I sustained injury on my chin when he pushed me into the door. I had a swelling on my chin. But outside of that, there was no more physical injuries, outside of that.”) While the aggravation of the pre-existing knee condition was undoubtedly unpleasant, he apparently experienced stiffness in the knee before and after the incident. True, after the May incident, his double knee gave out on him causing him to fall on at least one occasion. But, the nexus between the May 22 incident and surgery a year later and after the October 31 incident is both attenuated and dependent upon plaintiff's self diagnosis. “Not every push or shove, even if it may later seem unnecessary in the peace of the judge's chambers, violates a prisoner's constitutional rights.” Hudson, 503 U.S. at 9 (citation omitted). No reasonable jury could Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 182 of 300
James v. Phillips, Not Reported in F.Supp.2d (2008) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 conclude that the degree of force used was sufficiently serious to establish a constitutional violation. With respect to Sergeant Smalldone, no liability may be imposed upon him under any theory recognized for imposing liability under section 1983 on a supervisor for the conduct of a subordinate. See Iqbal v. Hasty, 490 F.3d 143, 152–53 (2d Cir.2007) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)). Summary judgment will be granted to defendants Nagy, Gordon and Small-done on the claim of use of excessive force arising out of the May 22 incident. A. Liability under Section 1983: Deliberate Indifference to Medical Needs The Supreme Court has held that deliberate indifference to serious medical needs of a prisoner falls under the Eighth Amendment prohibitions upon “cruel and unusual punishments,” and the unnecessary and wanton infliction of pain. See Wilson v. Seiter, 501 U.S. 294, 297 (1991); Estelle v. Gamble, 429 U.S. 97 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). Inadvertent or negligent failure to provide adequate medical care does not rise to the level of deliberate indifference. Estelle, 429 U.S. at 105– 06. Allegations of medical malpractice or negligent treatment are also insufficient to state a claim under § 1983. Id. at 106 (“Medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”); Bryant v. Maffucci, 923 F.2d 979, 983 (2d Cir.1991). There is both an objective and subjective element to a claim of deliberate indifference upon which the plaintiff bears the burden of proof. “Objectively the alleged deprivation must be ‘sufficiently serious,’ in the sense that ‘a condition of urgency, one that may produce death, degeneration, or extreme pain’ exists. Subjectively, the charged official must act with a sufficiently culpable state of mind.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (citations omitted). *6 The objective prong of the test requires that the plaintiff be subjected to conditions that are “repugnant to the conscience of mankind,” Estelle, 429 U.S. at 106, result “in unquestioned and serious deprivations of basic human needs,” or “deprive inmates of the minimal civilized measure of life's necessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). The second prong of the test, the subjective prong, requires that the prison official act with a culpable state of mind. It is met where the evidence shows that the prison official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837; see also Chance, 143 F.3d at 702. There must be evidence demonstrating more than mere medical malpractice, or disagreement about treatment options. See Estelle, 429 U.S. at 106; Bryant, 923 F.2d at 983; Brown v. Selwin, 250 F.Supp.2d 299, 307 (S.D.N.Y.1999) (noting that “mere disagreement with prison officials about what constitutes appropriate medical care does not state a cognizable claim under the Eighth Amendment. Prison officials have broad discretion in determining the nature and character of medical treatment afforded to inmates, and inmates do not have the right to the treatment of their choice.”) (citations and internal quotations omitted), aff'd, 29 Fed. Appx. 762 (2d Cir. Mar 6, 2002). Here, the denial of the daily medication on May 22, 2008 does not rise to the level of an event “sufficiently serious” to support an Eighth Amendment claim. It was an isolated incident and plaintiff cannot demonstrate any actual or potential harm arising out of the incident that is more than de minimis. If plaintiff claims that there was any indifference to medical needs in the aftermath of the May 22 incident, he has failed to come forward with evidence from which a reasonable jury could find in his favor. The morning after the incident, he reported to “regular” or “routine” sick call and was seen by a nurse who told him to go to the emergency room where he was seen by a doctor; one of the health care providers gave him an ice pack for the swelling on his chin. (P. Dep.23.) With respect to the knee, the examining health care provider, according to plaintiff, detected “slight swelling” and told him to put a warm press on it and continue to use Bengay and “put the strap on”—presumably an orthopedic device. (Id.) A few days later his knee “locked up” and he was taken via gurney to the emergency room where he was prescribed a knee brace and crutches. (Id. at 24.) Plaintiff was given physical therapy and had outside consultations with orthopedists leading up to eventual surgery. (Id. 16.) The treatment for the May 22 incident overlapped in substantial part with the treatment for the injuries from the October 31 incident. Assuming, without deciding, that the aftermath of the May 22 incident meets the first prong in that a sufficiently serious injury was presented, no reasonable jury could conclude that any defendant knew of and disregarded an excessive risk to plaintiffs health. The Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 183 of 300
James v. Phillips, Not Reported in F.Supp.2d (2008) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 care given as the condition evolved was neither inappropriate to the circumstances nor bespeaks of a culpable state of mind on the part of any defendant. *7 In the immediate aftermath of the October 31 incident medical staff members arrived on the scene, including a doctor, Dr. Bernstein, and nurse. There is a claim that Schmitt, a sergeant who had been named as a defendant but was dismissed by stipulation, would not let them minister to plaintiff who, at various times, was collapsed on the floor and/or bleeding above the right eye. (Id. at 31–33.) Dr. Bernstein, according to plaintiff, asked to be permitted to treat plaintiff and was denied access, and that plaintiff was denied medical care for “at least an hour-and-a half.” (Id.) The doctor arranged to have plaintiff examined in the emergency room and had the wound near his eye bandaged and he was given Motrin. (Id.) I construe plaintiff's allegations to include a claim of medical indifference on the part of the persons who are alleged to have participated in the October 31 incident, defendants Kieman, Tillotson, Cryzewski, Miller and Austin. The record is not sufficiently developed for me to conclude that defendants have met their initial summary judgment burden with respect to such a claim against these defendants. The claim against Bushey presents a closer question. He is alleged to have directed the plaintiff to be placed back into his cell to await medical treatment, despite the nurse's presence and availability to administer treatment on the scene. I cannot exclude the possibility that plaintiff could prove a claim against Bushey. Plaintiff complains of the adequacy of treatment in the ensuing period as administered by Dr. Bernstein (a now dismissed defendant) and Dr. Mamis and the supervision by the Facility Health Services Director, Dr. Koeningsmann. While plaintiff is unhappy with the manner in which his knee was treated and the delay in proceeding to surgery, there is nothing in the record from which a reasonable jury could conclude any culpable state of mind on the part of any of the three medical doctors. 1 B. Liability of Supervisors under Section 1983 For an actionable claim to survive against state officials in their personal capacity, a plaintiff must demonstrate “personal involvement of defendants in alleged constitutional deprivations ....“ Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995) (citation omitted); see also Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir.1973) (“The rule in this circuit is that when monetary damages are sought under § 1983, the general doctrine of respondeat superior does not suffice and a showing of some personal responsibility of the defendant is required.”). “Personal involvement of a supervisory official may be established ‘by evidence that: (1) the [official] participated directly in the alleged constitutional violation, (2) the [official], after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the [official] created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the [official] was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the [official] exhibited deliberate indifference to the rights of [others] by failing to act on information indicating that unconstitutional acts were occurring.’ “ Johnson v. Newburgh Enlarged School Dist., 239 F.3d 246, 254 (2d Cir.2001) (alterations in original) (quoting Colon, 58 F.3d at 873). Therefore, liability may be premised upon grossly negligent supervision of others, personally ignoring evidence of constitutional wrongdoings, creating a policy or custom under which unconstitutional practices occurred, or allowing the continuance of such a policy. See id at 254. *8 Plaintiff asserts claims against defendant Phillips, the former Superintendent of the facility, based upon the October 31 incident and denial of medical care after the incident. In the face of defendant's motion, plaintiff has not come forward with evidence of personal involvement on Phillips' part that would permit a reasonable jury to find in plaintiffs favor. C. Qualified Immunity Defense Defendants Bushey, Kiernan, Tillotson, Miller, Austin and Czyzewski assert that they are entitled to qualified immunity with respect to plaintiffs claim of deliberate indifference to his serious medical needs. 2 The record is not sufficiently developed for me to conclude that defendants have met their initial summary judgment burden with respect to such a defense. Plaintiff's version of the facts is that it was unreasonable for plaintiff to be placed back in his cell, and for plaintiff to be denied medical treatment for an hour and a half, because it was clear that he required immediate medical attention. There are no undisputed facts in the record that would establish that it was “objectively reasonable for the defendants to believe that their actions did not violate clearly established rights.” Defore v. Premore, 86 F.3d 48, 50 (2d Cir.1996). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 184 of 300
James v. Phillips, Not Reported in F.Supp.2d (2008) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Conclusion By Stipulation, entered as an Order of the Court on July 5, 2007 (Docket Entry # 70), all claims against defendants Haponik, Thornton, Schmitt, Huddle, Sarles, Bernstein and Woods have been dismissed with prejudice. The same Stipulation and Order narrows other of the claims. I have considered all of the evidence tendered by any party on this motion and construed that evidence in a light most favorable to plaintiff. I have considered the parties' arguments, including those not specifically addressed herein. Summary judgment is granted dismissing all claims against all remaining defendants, except (a) the excessive force claims against defendants Kieman, Tillotson, Czyzewski, Miller and Austin arising out the October 31, 2003 incident; and (b) the indifference to medical needs claims against defendants Bushey, Kiernan, Tillotson, Czyzewski, Miller and Austin in the immediate aftermath of the October 31, 2003 incident. The Pro Se Clerk is respectfully requested to place this case on the list of cases for which pro bono assistance is sought. Discovery is now closed and the next step is to set a date for Final Pretrial Submissions and a Final Pretrial Conference. SO ORDERED. All Citations Not Reported in F.Supp.2d, 2008 WL 1700125 Footnotes 1 Plaintiff also asserts that Mamis cancelled a follow-up appointment for Physiatry for his right knee on November 14, 2003 out of a retaliatory motive because of prior grievances plaintiff filed against him. Whether viewed through the lens of medical indifference or retaliation for engaging in speech or a protected activity, the canceling of one appointment is not sufficiently serious to amount to a cognizable claim under any theory. 2 Dr. Koenigsmann also asserts a qualified immunity defense; however, I need not reach the question of whether Dr. Koenigsmann is entitled to qualified immunity, because I am granting the motion for summary judgment with respect to the claim brought against him on other grounds. (See Section E, supra.) End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 185 of 300
Johnson v. Fraizer, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 7012961 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Andre A. JOHNSON, Plaintiff, v. Correctional Sgt. J. FRAIZER, Correctional Officer L. DiRienzo and Saj, Deputy Superintendent, Defendants. 16-CV-6096 CJS | Signed 12/01/2016 Attorneys and Law Firms Andre A. Johnson, Attica, NY, pro se. Hillel David Deutsch, NYS Attorney General's Office, Department of Law, Rochester, NY, for Defendants. DECISION and ORDER CHARLES J. SIRAGUSA, United States District Judge INTRODUCTION *1 Andre Johnson (“Plaintiff” or “Johnson”), a prison inmate in the custody of the New York State Department of Corrections and Community Services (“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983, alleging that Defendants violated his federal constitutional rights by, inter alia, retaliating against him and violating his procedural due process rights. Now before the Court is Defendants' motion to dismiss the Amended Complaint, for failure to exhaust administrative remedies. The application is granted. BACKGROUND The operative pleading in this action is Plaintiff’s Amended Complaint. Generally, the Amended Complaint alleges that, at Livingston Correctional Facility (“Livingston”), after Plaintiff filed complaints against defendant Corrections Sergeant Fraizer (“Fraizer”), Fraizer conspired with defendant Corrections Officer L. DiRienzo (“DiRienzo”), who filed false misbehavior reports against him; and that thereafter, defendant Deputy Superintendent Saj (“Saj”) conducted a disciplinary hearing in which he violated Plaintiff’s right to procedural due process. According to the pleading, Saj found Plaintiff guilty of the disciplinary infractions and sentenced him to period of confinement in the Special Housing Unit (“SHU”). The Amended Complaint contains certain allegations regarding Plaintiff’s attempts to exhaust his administrative remedies before commencing this action. In pertinent part, the pleading makes the following statements, which are listed in the order in which they appear: That because of the retaliatory actions of the Defendants the Plaintiff was also deprived of his rights to appeal the disposition of the Tier II hearing. *** That because of the Defendants retaliatory actions the Plaintiff has been harassed, threats made towards his life, has been subjected to unfair and impartial hearings[.] *** The Plaintiff has exhausted his administrative remedies before filing this claim, by filing formal complaints to the Governor of the State of New York, to the Acting Commissioner of D.O.C.C.S., to the Superintendent of Livingston Correctional Facility, as well as [the] Grievance Office of Livingston Correctional Facility, and the Internal Affairs bureau to no avail. Amended Complaint. However, the amended pleading also indicates that the alleged constitutional violations occurred in Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 186 of 300
Johnson v. Fraizer, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 mid– and late-January, 2016, and that Plaintiff commenced this action a mere three weeks later, on February 17, 2016. As an aside, Plaintiff’s contention in the Amended Complaint, that he exhausted his administrative remedies before commencing this action, is at odds with his statements in the original Complaint. Specifically, in the original Complaint, which was filed less than a month prior to the Amended Complaint, and which was sworn to by Plaintiff under penalty of perjury, he stated that he neither grieved his claims, nor appealed any adverse decision concerning the grievance process. Further, in response to the question, on the form complaint that Plaintiff used to draft the original complaint, “If you did not exhaust your administrative remedies, state why you did not do so,” Plaintiff wrote, “N/A.” 1 *2 On September 30, 2016, Defendants filed the subject motion to dismiss the Amended Complaint, for failure to exhaust administrative remedies. Defendants contend that the allegations in the Amended Complaint establish that Plaintiff failed to exhaust his administrative remedies before commencing this action. In that regard, Defendants point out that while Plaintiff claims that he took certain actions, such as sending complaints to the Governor of the State of New York, such actions do not amount to exhaustion under the PLRA: In the matter before the Court, the complaint states that Plaintiff did not file a grievance, appeal to the superintendent and then appeal to [the Central Office Review Committee] [“]CORC[”], as he is required to do. Instead, Plaintiff claims to have simply written a letter to various different agencies, waited approximately ten days, and then filed suit. ... He simply refused to wait for the relevant decisions to come down and appeal them; instead he attempted to file his grievance and appeals all at the same time. 2 Defendants further contend that while the Amended Complaint alleges that Plaintiff was “deprived of his rights to appeal the disposition of the Tier II hearing,” it “provides no further explanation.” 3 In opposition to Defendants' motion to dismiss, Plaintiff filed a response [#33], which makes the following arguments: 1) on January 29, 2016, Plaintiff “filed an appeal” of his convictions at the Tier III disciplinary hearing, but “said Appeal was not allowed to leave the Facility”; 2) the results of the tier disciplinary hearing could not be “grieved” through the IGP; 3) Plaintiff was not required to exhaust his administrative remedies because in this action he is seeking only money damages. Because Plaintiff is a pro se inmate, the Court also takes judicial notice of the fact that the instant lawsuit is not the only one that he has filed in this Court concerning the events in this action. 4 For example, on June 20, 2016, Plaintiff filed an action, entitled “Johnson v. Annucci, et al.,” 16- CV-6417 CJS, in which he refers to some of the same events about which he complains in this action. Particularly, in the Amended Complaint [#7] in that action, Plaintiff clarifies, somewhat, his cryptic statement, in the amended complaint, that he was “deprived” of the right to appeal, as well as the related statement, made in response to Defendants' motion to dismiss this action, that he attempted to appeal his disciplinary conviction, but the appeal was “not allowed to leave the facility”: [O]n January 29, 2016, the Plaintiff submitted his appeal while being confined in S.H.U. at the Livingston Correctional Facility, by placing in the hands of the 11-to-7 officer on duty said appeal in a “stamped envelope” addressed to the Office of the Director of the Special Housing/ Inmate Disciplinary in Albany N.Y. Also, sending a copy of the appeal to the office of the Governor of the State of New York. The Defendants refused to allow any and all legal correspondence of the Plaintiff to leave the facility in an attempt to hid[e] the misconduct of Officials[.] 16-CV-6417, Docket No. [#7] at p. 5 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 187 of 300
Johnson v. Fraizer, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 PRINCIPLES OF LAW *3 At the outset, since Johnson is proceeding pro se, his papers “must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (citation omitted). The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires prison inmates to exhaust such administrative remedies “as are available” before commencing an action “with respect to prison conditions under [42 U.S.C. §] 1983.” “The PLRA requires proper exhaustion, which means using all steps that the prison grievance system holds out, and doing so properly (so that the prison grievance system addresses the issues on the merits. Untimely or otherwise procedurally defective administrative grievances or appeals fail to satisfy PLRA’s exhaustion requirements.” Riles v. Buchanan, ––– Fed. Appx. ––––, 2016 WL 4572321 at *1 (2d Cir. Sep. 1, 2016) (citations and internal quotation marks omitted). However, the PLRA exhaustion requirement may be excused where administrative remedies are not “available,” and there are at least three circumstances under which such remedies may be considered unavailable: First, an administrative remedy may be unavailable when it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates. Second, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In other words, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it. Third, an administrative remedy may be unavailable when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. Williams v. Correction Officer Priatno, 829 F.3d 118, 123– 24 (2d Cir. 2016) (quoting Ross v. Blake, ––– U.S. ––––, 136 S.Ct. 1850, 1859-1860 (2016); internal quotation marks omitted). “Inmates must exhaust their administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings.” Geer v. Chapman, No. 915CV952GLSATB, 2016 WL 6091699, at *3 (N.D.N.Y. Sept. 26, 2016) (citing Giano v. Goord, 380 F.3d 670, 675-76 (2d Cir. 2004)), report and recommendation adopted, No. 915CV952GLSATB, 2016 WL 6090874 (N.D.N.Y. Oct. 18, 2016). For retaliation claims, an New York State inmate must exhaust his administrative remedies by utilizing New York’s three- tiered Inmate Grievance Program (“IGP”) procedures: DOC[C]S' Inmate Grievance Program (“IGP”) has a regular three-tiered process for adjudicating inmate complaints: (1) the prisoner files a grievance with the Inmate Grievance Resolution Committee (“IGRC”), (2) the prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and (3) the prisoner then may appeal an adverse decision by the superintendent to the Central Officer Review Committee (“CORC”). Quezada v. Ercole, No. 09CIV2832DLC, 2011 WL 3251811, at *4 (S.D.N.Y. July 29, 2011) (citing Espinal v. Goord, 554 F.3d 216, 224 (2d Cir. 2009)). On the other hand, an inmate exhausts a procedural due process claim, arising from a prison disciplinary hearing, by completing the disciplinary administrative appeal process. See, Davis v. Jackson, 2016 WL 5720811 at * 7 (Noting that the filing of an administrative appeal from a disciplinary hearing is “the proper mode of exhaustion” for a procedural due process claim arising from the disciplinary hearing). *4 Where the inmate is asserting both retaliation claims and procedural due process claims, he must separately exhaust both types of claim, using the procedure appropriate to each type of claim. See, Davis v. Jackson, 2016 WL 5720811 at * 7 (Observing that filing an administrative appeal from Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 188 of 300
Johnson v. Fraizer, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 an underlying disciplinary proceeding was “an inappropriate means of exhaustion for Plaintiff’s retaliation claims.”) (collecting cases); see also, Washington v. Chaboty, No. 09 CIV. 9199 PGG, 2015 WL 1439348, at *7 (S.D.N.Y. Mar. 30, 2015) (“In certain circumstances, however, courts have deemed a disciplinary appeal inadequate to exhaust a claim under the PLRA. Inmate Grievance Program exhaustion has been required, for example, where an inmate alleges retaliation, including retaliation based on the filing of an allegedly false misbehavior report.”) (citation omitted). The PLRA’s exhaustion requirement is an affirmative defense, not a jurisdictional requirement: The Second Circuit has made clear that, in this context, “administrative exhaustion is not a jurisdictional predicate,” but rather, “an affirmative defense.” Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004). Accordingly, “defendants bear the burden of proof[,] and prisoner plaintiffs need not plead exhaustion with particularity.” McCoy v. Goord, 255 F. Supp. 2d 233, 248 (S.D.N.Y. 2003)[.] France v. Cty. of Westchester, No. 12-CV-5576 (KMK), 2016 WL 1270259, at *4 (S.D.N.Y. Mar. 30, 2016) (additional citations omitted). Consequently, as Defendants admit, dismissal under Rule 12 for failure to exhaust administrative remedies is only appropriate where such failure is “clear” from the face of the complaint. On this point, the Second Circuit recently stated: Failure to exhaust administrative remedies is an affirmative defense under the PLRA, not a pleading requirement. Accordingly, inmates are not required to specially plead or demonstrate exhaustion in their complaints. However, a district court still may dismiss a complaint for failure to exhaust administrative remedies if it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement. Williams v. Correction Officer Priatno, 829 F.3d at 122 (citations omitted). DISCUSSION Defendants contend that the action should be dismissed pursuant to Fed. R. Civ. P. 12, because it is evident from the face of Johnson’s Amended Complaint [#17] that he failed to exhaust his administrative remedies before commencing this action. The Court agrees with Defendants that, to the extent that Plaintiff maintains that he did not need to exhaust his administrative remedies because he is seeking money damages in this action, his argument lacks merit. Similarly, Plaintiff’s argument that his disciplinary conviction is a “non-grievable issue” is, while true, irrelevant; although such convictions cannot be “grieved” through the IGP, they can be, and must be, administratively exhausted through the appeals process, as discussed above. Additionally, Plaintiff obviously understood that fact, since he claims that he attempted to exhaust his procedural due process claim by appealing his disciplinary conviction. The Court also tends to agree with Defendants' argument that, since Plaintiff filed this action a mere three weeks after the events at issue, it is probable that he simply skipped the grievance/appeal stage and came directly to Federal Court. Certainly, Plaintiff’s original Complaint in this action tends to support such a view. In opposition to Defendants' arguments, Plaintiff is essentially left with two contentions. First, he states that he attempted to mail an appeal of his disciplinary conviction, but unidentified persons prevented the envelope from leaving Livingston. Indeed, Plaintiff even more broadly states, “The Defendants refused to allow any and all legal correspondence of the Plaintiff to leave the facility in an attempt to hid[e] the misconduct of Officials[.]” (emphasis added). The Court liberally construes such statements to mean that the administrative appeals process was not “available” to Plaintiff, because corrections staff “thwarted” his efforts. However, Plaintiff’s contention on this point is not plausible, and therefore need not be accepted as true. 5 First and foremost, Plaintiff makes only a conclusory statement that his mailing was not allowed to leave the facility, without offering any explanation for why he believes that. Meanwhile, his contention that all of his legal mail was similarly purloined is belied by his admission that he was able to send other complaints about the matter to various New York State officials at around the same time. Plaintiff offers no explanation for why Livingston staff would prevent him from mailing that particular appeal, but allow him to mail out all Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 189 of 300
Johnson v. Fraizer, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 his other complaints, including the original complaint in this action. *5 Lastly, Plaintiff claims that Livingston staff harassed him and threatened his life, after he filed other grievances. The Court liberally construes this statement as an argument that the IGP procedures were not “available” to him, due to threats from corrections staff. However, the Court does not find this allegation plausible. To begin with, the allegation itself is entirely conclusory, since it does not indicate who threatened him, when he was threatened, or how he was threatened. Moreover, the alleged threats clearly did not dissuade Plaintiff from making and sending a wide variety of other complaints about Livingston staff to New York State officials, including officials at Livingston. See, Amended Complaint (“The Plaintiff has exhausted his administrative remedies before filing this claim, by filing formal complaints to the Governor of the State of New York, to the Acting Commissioner of D.O.C.C.S., to the Superintendent of Livingston Correctional Facility, as well as [the] Grievance Office of Livingston Correctional Facility, and the Internal Affairs bureau to no avail.”); see also, Riles v. Buchanan, 2016 WL 4572321 at *3 (“Nor did DOC officials' alleged threats of retaliation interfere with his exhaustion efforts....He was not deterred from exhausting; he simply did not exhaust in accordance with the procedures.”). For all of these reasons, the Court finds that it is clear, from the face of Plaintiff’s Amended Complaint, that he failed to exhaust his administrative remedies before commencing this action, in violation of 42 U.S.C. § 1997e(a). CONCLUSION Defendants' motion to dismiss [#30] is granted, and this action is dismissed without prejudice. The Clerk of the Court is directed to close this action. SO ORDERED. All Citations Not Reported in Fed. Supp., 2016 WL 7012961 Footnotes 1 “A statement in a withdrawn complaint that is superseded by an amended complaint without the statement is no longer a conclusive judicial admission[, though] the factfinder may very well find that such a contradictory statement reduces the credibility of the witness[.]” Tho Dinh Tran v. Alphonse Hotel Corp., 281 F.3d 23, 32 (2d Cir. 2002) overruled on other grounds by Slayton v. Am. Exp. Co., 460 F.3d 215 (2d Cir. 2006). 2 Def. Memo of Law [#30-1] at pp. 3-4. 3 Def. Memo of Law [#30-1] at p. 1. 4 “In deciding a motion to dismiss a pro se complaint, it is appropriate to consider certain materials outside the complaint to the extent that they are consistent with the allegations in the complaint.” Davis v. Jackson, Case No. 15-CV-5359 (KMK), 2016 WL 5720811 at *4 (S.D.N.Y. Sep. 30, 2016) (citation and internal quotation marks omitted). 5 In Williams v. Priatno, 829 F.3d at 124, n. 3, the Second Circuit explained why it found an SHU inmate’s contention, that a corrections officer never filed his grievance, to be plausible. Here, there is no such supporting facts to make Johnson’s contention plausible. Instead, there is evidence tending to refute his assertion. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 190 of 300
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2018 WL 4732755 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Alfredo LEWIS, Plaintiff, v. Lynn WASIELEWSKI, Rebecca McDaniel, Paul Burke, Dennis Becker and Sabato Parisi, Defendants. 15-CV-0168-RJA-MJR | Signed 07/09/2018 | Filed 07/10/2018 Attorneys and Law Firms Alfredo Lewis, Uniondale, NY, pro se. David J. Sleight, Office of the Attorney General, Buffalo, NY, for Defendants. REPORT AND RECOMMENDATION HONORABLE MICHAEL J. ROEMER, United States Magistrate Judge INTRODUCTION *1 This case has been referred to the undersigned pursuant to Section 636(b)(1) of Title 28 of the United States Code, by the Honorable Richard J. Arcara, for hearing and reporting on dispositive motions for consideration by the District Court. Before the Court is defendants' motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 61). For the following reasons, it is recommended that defendants' motion for summary judgment be granted and the complaint dismissed. PROCEDURAL BACKGROUND Plaintiff Alfredo Lewis (“plaintiff”), an inmate in the care and custody of the New York State Department of Corrections and Community Supervision (“DOCCS”) who is proceeding pro se, claims that his constitutional rights were violated, in contravention of Section 1983 of the Title 28 of the United States Code, when he was retaliated against and assaulted as a result of writing letters of complaint while incarcerated at Gowanda Correctional Facility (“Gowanda”). (Dkt. No. 1). Plaintiff sued Gowanda and a number of individuals employed by DOCCS as counselors and correction officers during the relevant time period. (Dkt. No. 1). On August 28, 2015, the Court granted plaintiff’s request to proceed in forma pauperis. (Dkt. No. 10). The Court also dismissed, with prejudice, plaintiff’s claims against Gowanda, Supervisor Counselor Cabeara, and all other individual defendants in their official capacities. (Id.). The remaining defendants, sued in their individual capacities, include Lynn Wasielewski, Rebecca McDaniel, Paul Burke, Dennis Becker, and Sabato Parisi. In addition to the complaint, plaintiff submitted a number of other documents and exhibits in support of his claims. (Dkt. Nos. 11, 13, 14, 22 and 33). Defendants filed answers to the complaint and the Court held a preliminary pretrial conference on August 16, 2016, at which time it entered a Case Management Order. (Dkt. Nos. 25, 28, 31, 34, 37, 39). The parties proceeded with discovery which included Rule 26 disclosures, document and interrogatory requests by plaintiff, and a deposition of plaintiff by defendants. (Dkt. Nos. 40, 43, 48, 58, 64). Defendants filed the instant motion for summary judgment on November 26, 2017. (Dkt. Nos. 61-63). Plaintiff submitted a number of responses in opposition to the motion (Dkt. Nos. 65, 66, 69), and defendants filed a reply on December 22, 2017 (Dkt. No. 67). RELEVANT FACTS At the time of the incidents relevant to this lawsuit, plaintiff was an inmate in the care and custody of DOCCS. 1 (Dkt. No. 62, ¶¶ 1-2; Dkt. No. 1, pg. 2). Also at the time of the events alleged in the complaint, defendant Lynn Wasielewski was employed by DOCCS as a social worker at Gowanda, defendant Rebecca McDaniel was employed by DOCCS as an Offender Rehabilitation Coordinator at Gowanda, defendants Paul Burke and Dennis Becker were employed by DOCCS as correction officers at Gowanda, and defendant Sabato Parisi was employed by DOCCS as a correction sergeant at Gowanda. (Dkt. No. 62 at ¶¶ 3-7; Dkt. No. 1, pg. 2). *2 Plaintiff’s Arrival at Gowanda Plaintiff was transferred to Gowanda from Bare Hill Correctional Facility on or around January 20, 2015. (Dkt. No. 62-2; Dkt. No. 68, pg. 8). The conviction that resulted Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 191 of 300
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 in plaintiff’s placement in DOCCS custody at that time was stalking in the second degree. (Dkt. No. 68, pg. 5) Plaintiff testified that upon arrival at Gowanda, he learned that he had been transferred there in order to participate in the Sex Offender Treatment Program (“SOP”). (Id. at 10). Plaintiff was interviewed by McDaniel, a counselor assisting with the SOP, on the day he arrived at Gowanda. (Id. at 8, 11). Plaintiff testified that he informed McDaniel that because he was not incarcerated for a sex offense, he was not required to complete the SOP. (Id.). Plaintiff contends that McDaniel informed him that unless he signed a paper enrolling himself in the SOP, he would be required to serve his maximum sentence of incarceration. (Id. at 9-11). Plaintiff emphasized to McDaniel that the SOP was not consistent with his “merit board” and that it would interfere with his ability to enroll in other programs. 2 (Id. at 9, 11). Plaintiff indicates that McDaniel became very agitated with him during the interview as result of his opposition to participate in the SOP. (Id. at 11-12). Nonetheless, plaintiff was enrolled in the SOP and began participating. (Dkt. No. 66, pg. 21; Dkt. No. 64, pgs. 27, 31). In early February of 2015, plaintiff wrote letters of complaint to Cabrera and Wasielewski. (Dkt. No. 1, pgs. 3-5; Dkt. No. 69, pgs. 9-18). Plaintiff indicates that both of these individuals were supervisors at Gowanda. (Id.). Specifically, plaintiff complained about his placement in the SOP and McDaniel’s refusal to place him in other programs. (Id.). He complained that during the SOP meetings McDaniel asked him inappropriate questions about his parents' sexual relationship. (Id.). He further complained that McDaniel would have outbursts during meetings if he or other inmates did not provide certain answers to her questions, which caused them to fabricate stories. (Id.). Alleged Assault on February 6, 2015 Plaintiff contends that on February 6, 2015, Wasielewski confronted him immediately prior to a SOP meeting. (Dkt. No. 68, pgs. 14-15; Dkt. No. 1, pg. 6). Wasielewski was upset that plaintiff “went over her head and McDaniel’s head by writing to Cabrera.” (Dkt. No. 68, pg. 15). Plaintiff states that he returned to the meeting and that after it ended, he was approached by a correction officer who indicated that a sergeant wanted to speak with him. (Dkt. No. 68, pg. 17; Dkt. No. 1, pg. 6). Plaintiff reported to Parisi, the correction sergeant. (Dkt. No. 62, ¶ 15). Plaintiff states that he was then taken to a stairwell, told to put his hands on the wall, and handcuffed. (Dkt. No. 68, pg. 18; Dkt. No. pg. 6). Plaintiff claims that Parisi pulled his hair and repeatedly punched him in the ribs. (Dkt. No. 68, pgs. 18-19; Dkt. No. pg. 6). Plaintiff contends that Parisi stated “what the hell do [you] think [you are] doing writing letters” and accused him of trying to get staff members fired. (Dkt. No. 68, pg. 19; Dkt. No. 1, pg. 6). Plaintiff alleges that Parisi stated to him: “I'm going to put your black ass in the SHU box” and to another officer in plaintiff’s presence: “[Plaintiff is] lucky he don't put [plaintiff] somewhere [his] body can't be found.” (Dkt. No. 1, pg. 6). *3 Plaintiff received an inmate misbehavior report that same day charging him with harassment, lying and stalking. (Dkt. No. 68, pg. 17; Dkt. No. 1, pg. 6-7). The misbehavior report, which was written by K. Hoth and signed by Parisi, alleged that plaintiff harassed McDaniel and included inappropriate comments about her in his letters of complaint causing her to fear for her safety. (Dkt. No. 69, pg. 21-22; Dkt. No. 62-5). Plaintiff contends that the charges were fabricated by McDaniel and Wasielewski to retaliate against him for his complaints. (Dkt. No. 1; pg. 6-7). Plaintiff was found guilty of all three charges at a disciplinary hearing held on February 20, 2015. (Dkt. No. 68 pg. 24; Dkt. Nos. 62-6, 62-7). Plaintiff was sentenced to ninety days in the special housing unit (“SHU”) and ninety days loss of recreation, packages, commissary, phone and special events. (Dkt. No. 62, ¶ 17). Plaintiff appealed the hearing determination to the DOCSS Commissioner in Albany, New York. (Dkt. No. 68, pg. 25; Dkt. No. 11). On or around March 6, 2015, plaintiff was transferred to Upstate Correctional Facility (“Upstate”). (Dkt. No. 68, pg. 27; Dkt. No. 62-2). As a result of his appeal, plaintiff’s convictions for making a false statement and stalking were dismissed on April 23, 2015. (Dkt. No. 68, pgs. 24-25, 27; Dkt. No. 11). His sentence was reduced to thirty days in SHU. (Id.). Use of DOCCS' Grievance Procedures In his federal court complaint, plaintiff states that he did not file a grievance regarding the assault on February 6, 2015 “in order to keep [himself] safe from staff.” (Dkt. No. 1, pg. 7). He further states in the complaint that “Albany was sent a complaint by mail on what ha[d] taken place.” (Id.). However, plaintiff provided contradictory testimony during his deposition. Specifically, plaintiff testified during his deposition that he filed a grievance about the February 6, 2016 incident but never received a response. (Dkt. No. 68, pg. 20). Plaintiff also testified that he wrote a letter to the State Commission of Corrections about the incident. (Id. at 21; Dkt. No. 62-9). When asked for clarification by defense counsel, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 192 of 300
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 plaintiff testified, “I wrote to grievance on a few different people ... I don't think I put exactly what happened because I didn't know if it would actually be, you know, passed off to the wrong person ... I didn't want to let too much be known after the threats I was getting.” (Dkt. No. 68, pg. 22). Later during the same deposition, defense counsel asked plaintiff about his statement in his federal court complaint indicating that he did not grieve the incident. Plaintiff testified, in contradiction to his earlier statement during the deposition that he filed a grievance, that he did not file a grievance because he was fearful that officers would further harm him. (Id. at 29-30). Plaintiff further testified that officers harassed and threatened him and that when he was being taken to SHU an officer stated “go ahead and run your mouth” and “your other hand will be broken.” (Id. at 22-23, 31-32). However, plaintiff did not specify which officers threatened him nor is it clear exactly when these alleged threats occurred. Also during his deposition, plaintiff acknowledged that he filed the instant lawsuit on February 25, 2015, less than thirty days after the alleged assault and while he was still incarcerated at Gowanda. (Dkt. No. 68, pgs. 29-30). When asked by defense counsel why he was afraid to file a grievance but was not afraid to file a lawsuit, plaintiff testified that he believed he would be transferred out of Gowanda soon after his disciplinary hearing. (Id. at 30). Plaintiff further testified that he did not believe the grievance process was effective, since he “knew it would be intercepted someway”, he did not “see [the officers] investigating themselves” and he “wanted somebody to come from the outside to investigate this.” (Id. at 30-31). Plaintiff also testified that he did not file a grievance after his transfer to Upstate because he described the alleged assault during the appeal of his disciplinary charges. (Id. at 33). Plaintiff testified that he is familiar with inmate grievance procedures. (Id. at 22). A review of the inmate grievance records from DOCCS shows no record of a grievance or appeal filed by plaintiff while at Gowanda alleging retaliation or assault by defendants. (Dkt. No. 62, ¶ 21, Dkt. No. 62-8). DISCUSSION *4 Pursuant to Federal Rule of Civil Procedure 56, summary judgment is to be granted where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56. A genuine issue of material fact exists “where the evidence is such that a reasonable jury could decide in the non-movant’s favor.” Beyer v. Cty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). “[V]iewing the evidence produced in the light most favorable to the nonmovant, if a rational trier [of fact] could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate.” Bay v. Times Mirror Magazine, Inc., 936 F.2d 112, 116 (2d Cir. 1991). When a movant has met this burden, the burden shifts to the non-movant to bring forth evidence establishing the existence of an issue of material fact. Linares v. McLaughlin, 423 Fed. Appx. 84, 86 (2d Cir. 2011). In evaluating a motion for summary judgment, a court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party, and it is the burden of the moving party to demonstrate the absence of any material facts genuinely in dispute. Hathaway v. Coughlin, 841 F.2d 48, 50 (2d Cir. 1988). Where a plaintiff is proceeding pro se, the court must “construe the complaint liberally and interpret it to raise the strongest arguments that [it] suggest[s].” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). However, even a pro se litigant cannot defeat a motion for summary judgment by relying upon conclusory statements or mere allegations unsupported by facts. Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002). Plaintiff’s Failure to Exhaust Administrative Remedies The Prison Litigation Reform Act of 1995 (the “PLRA”) requires an inmate to exhaust available administrative remedies before bringing suit to complain of prison conditions or actions taken by prison officials, such as retaliation or excessive force. See 42 U.S.C. § 1997e(a); Ross v. Black, 136 S. Ct. 1850, 1854-55 (2016). Exhaustion under the PLRA is mandatory, and must occur before the filing of a lawsuit in federal district court. Woodford v. Ngo, 548 U.S. 81, 85 (2006). In order 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). DOCCS provides a detailed administrative review and appeals system for inmate grievances in New York. Nji v. Heath, 13 Civ. 200, 2014 U.S. Dist. LEXIS 163060, *7-6 (SDNY Nov. 10, 2014); accord 7 N.Y. Comp. Codes R. & Regs. § 701.5. In order to exhaust administrative remedies, the inmate must file a grievance with his or her facility’s Inmate Grievance Resolution Committee (“IGRC”) within 21 calendar days of the alleged occurrence. Id. If the IGRC denies the grievance, the inmate must file an appeal of the decision to the superintendent of his or her facility. Id. If the appeal to the superintendent is denied, the inmate must then appeal that determination to the Central Office Review Committee (“CORC”) located in Albany, New York. 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Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 Id.; accord Espinal v. Goord, 558 F.3d 119, 125-26 (2d Cir. 2009). The record before the Court establishes that plaintiff did not exhaust his administrative remedies before filing the instant lawsuit. Plaintiff states in his complaint that he did not file a grievance as to the incident on February 6, 2015. He then provided contradictory statements during his deposition as to whether he filed a grievance. Plaintiff initially testified during his deposition that he filed a grievance but did not receive a response. He later attempted to clarify the statement by explaining that he “wrote to grievance on a few people” but that he did not “put exactly what happened.” Plaintiff then testified during the same deposition that he did not file a grievance because he feared retaliation by officers. He later testified that he did not file a grievance because he believed the grievance process was ineffective. Indeed, a review of DOCCS records confirms that plaintiff did not file a grievance or appeal of the February 6, 2015 incident. Despite plaintiff’s initial statement in his deposition that he filed a grievance, the evidence in the record reflects that no grievance was filed as to the February 6, 2015 incident. This evidence includes plaintiff’s statements in his complaint, the majority of plaintiff’s deposition testimony wherein he indicates that he did not file a grievance, plaintiff’s deposition testimony as to the various reasons he did not file a grievance, and DOCCS' records, which confirm that no grievance or appeal were filed. Thus, the Court finds that plaintiff has not raised a genuine issue of material fact as to whether he filed a grievance. See Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005) (summary judgment in favor of defendant upheld where nothing in the record supported plaintiff’s allegations other than his own contradictory and incomplete testimony); Deebs v. Alstom Transp., Inc., 346 F. App'x 654, 656 (2d Cir. 2009) (“self-serving” deposition testimony cannot, by itself, defeat summary judgment); Burwell v. Payton, 5:12-cv-166, 2015 U.S. Dist. LEXIS 152745 (D. Vt. Nov. 9, 2015) (where plaintiff’s deposition testimony was contradicted by the video recording, his own statement of undisputed facts, and the allegations of his complaint, plaintiff failed to identify a genuine issue of material fact that would justify reconsideration). *5 Moreover, even if the Court were to credit plaintiff’s initial statement during his deposition that he filed a grievance, it remains clear that plaintiff did not fully exhaust his administrative remedies. Plaintiff testified that he did not receive a response to the grievance. DOCCS records reflect that no grievance or appeal was filed regarding the February 6, 2015 incident. Indeed, “the law is well-settled” that an inmate’s “failure to take an available administrative appeal, even when the initial grievance receives no response, constituted a failure to exhaust administrative remedies.” Garvin v. Rivera, 13-cv-7054, 2015 U.S. Dist. LEXIS 84675, *7-8 (SDNY June 29, 2015). See also Johnson v. New York City Dep't of Correction, 13-cv-6799, 2014 U.S. Dist. LEXIS 85444 (SDNY June 16, 2014) (“Assuming that Plaintiff filed a timely grievance ... and received no response within five business days[,] ... Plaintiff ... could have taken the next step and requested a hearing.”). Finally, plaintiff’s assertions that he sent a copy of his federal court complaint to Albany, wrote to the State Commission of Corrections, and that he complained about the February 6, 2015 incident during the appeal of his disciplinary hearing determination do not constitute exhaustion under the PLRA. The Second Circuit has held that alerting prison officials, through informal steps, as to the nature of the wrong for which redress is sought does not constitute proper exhaustion. Macias v. Zenk, 495 F.3d 37, 43-44 (2d Cir. 2007). See e.g., Nji, 2014 U.S. Dist. LEXIS 163060, *9 (“[s]ending letters to persons outside the grievance process is insufficient to establish exhaustion because it is well settled that complaints and communications made outside of formal grievance procedures do not satisfy the PLRA’s exhaustion requirement”) (internal citations and quotations omitted); David v. Doe, 9:16-cv-0994, 2017 U.S. Dist. LEXIS 213704 (NDNY Dec. 29, 2017) (prisoner who did not file a grievance as to his constitutional claims, but instead submitted a disciplinary appeal and told a representative of the Office of the Inspector General about the facts alleged in his lawsuit, did not properly exhaust his administrative remedies under the PLRA). Exceptions to the Exhaustion Requirement Do Not Apply Having concluded that plaintiff failed to exhaust his administrative remedies under the PLRA, the Court next considers whether there is any basis for excusing plaintiff’s failure to exhaust. In Ross v. Blake, the Supreme Court significantly narrowed the exceptions a court may afford a prisoner who does not comply with the exhaustion requirement in the PLRA. 136 S. Ct. 1850 (2016). Therein, the Supreme Court rejected the prior “special circumstances” exceptions to the exhaustion requirement which had previously been recognized by the Second Circuit. Id. at 1862. The Supreme Court held instead that the PLRA includes only a single “textual exception”, in that an inmate Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 194 of 300
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 need not exhaust administrative remedies not available to him or her. Id. at 1858. The Supreme Court went on to cite three scenarios in which an administrative grievance procedure would be unavailable to an inmate: (1) “[the procedure] operates as a simple dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) the procedure is “so opaque that it becomes, practically speaking, incapable of use”; or (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859-60. Here, the record before the Court fails to demonstrate that administrative remedies were unavailable to plaintiff. There is no evidence that the grievance procedures were opaque or incapable of use. As described above, DOCCS has a clear, detailed procedure for inmate grievances. Moreover, plaintiff testified that he was familiar with the DOCCS' grievance procedure. Plaintiff testified that he believed the grievance procedure was ineffective because he did not “see the officers investigating themselves” and that he “wanted somebody to come from the outside to investigate this.” (Dkt. No. 64, pg. 63). However, these conclusory statements, which reflect only plaintiff’s subjective beliefs, are insufficient to raise a triable issue of fact as to the availability of administrative remedies. In Woodward v. Ngo, the Supreme Court noted that “exhaustion requirements are designed to deal with parties who do not want to exhaust”, including those who “conclude —correctly or incorrectly—that exhaustion is not efficient in that party’s particular case.” 548 U.S. 81, 89-90 (2006). See also Harrison v. Goord, 07 Civ. 1806, 2009 U.S. Dist. LEXIS 48478, *15 (SDNY June 9, 2009) (“Prisoners are required to exhaust their administrative remedies even if they believe that administrative remedies would be ineffective or futile.”) (internal citations omitted); McMillian v. Walters, 9:16-CV-0277, 2017 U.S. Dist. LEXIS 208444, *7-8 (NDNY Dec. 18, 2017) (“An inmate’s belief that administrative remedies would be futile is not a valid excuse establishing the unavailability of such remedies.”). Moreover, there is no evidence in the record to indicate that DOCCS' complaint or grievance procedures were either opaque or operated as a dead end. To the contrary, plaintiff was able to successfully file an appeal of his disciplinary hearing determination to the Commissioner in Albany, New York. His appeal resulted in a dismissal of two charges and reduction of the amount of time he was sentenced to SHU. *6 Plaintiff also stated in his complaint and during his deposition that he did not file a grievance as to the incident on February 6, 2015 because he feared retaliation from officers at Gowanda. However, a generalized fear of retaliation is insufficient to overcome a failure to exhaust administrative remedies. Brown v. Napoli, 687 F. Supp. 2d 295, 297-98 (WDNY 2009); Harrison v. Stallone, 9:06-CV-902, 2007 U.S. Dist. LEXIS 98742 (NDNY Sept. 24, 2007) (“If an inmate could simply state that he feared retaliation, there would be no point in having a grievance procedure[.]”). During his deposition, plaintiff stated in a general and conclusory manner that he was threatened and harassed. He also testified that on one occasion an officer escorting him to SHU told him that his hand would be broken if he “ran his mouth”. However, plaintiff does not indicate who made this statement nor does he indicate the date or time it occurred. Plaintiff also fails to provide any further details as to the alleged threat or how it was specifically connected to his use of grievance procedures. Similarly, in Henry v. Cty. of Nassau, an inmate argued that administrative remedies were unavailable because defendants threatened to have him killed or assaulted if he reported various incidents of failure to intervene, and that on one occasion they threatened to “jump” him if he reported an incident. CV 13-7427, 2017 U.S. Dist. LEXIS 125443 (EDNY Aug. 7, 2017). The Eastern District of New York Court rejected these assertions and concluded that “[p]laintiff’s statements, devoid of any specifics, including which defendants were involved, are insufficient to defeat summary judgment.” Id. Likewise here, plaintiff’s general and conclusory statements that he was threatened are insufficient to raise a triable issue of fact as to the unavailability of the grievance procedure because of intimidation by prison administrators. See e.g., Rodriguez v. Cross, 15-CV-1079, 2017 U.S. Dist. LEXIS 71337 (NDNY May 9, 2017) (plaintiff’s conclusory allegations that he “was beaten” while attempting to access grievance procedures were insufficient to excuse his failure to exhaust under Ross, where he does not state “how any specific threat or subsequent act of violence impacted his ability to exhaust administrative remedies[.]”); Johnson v. Frazier, 16-CV-6096, 2016 U.S. Dist. LEXIS 165987 (WDNY Dec. 1, 2016) (plaintiff’s allegations that grievance procedures were not available due to threats from staff were “entirely conclusory, since [plaintiff did] not indicate who threatened him, when he was threatened or how he was threatened.”). Further, plaintiff’s actions after the February 6, 2015 incident directly contradict his claim that he did not file a grievance because he feared retaliation by officers at Gowanda. Plaintiff both wrote a letter about the incident to the State Commissioner of Corrections and filed the instant Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 195 of 300
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 federal lawsuit in February of 2015, while he was still incarcerated at Gowanda. See Rodriguez, 2017 U.S. Dist. LEXIS 71337 (“[P]laintiff’s failure to follow the grievance procedures cannot be excused by fears or intimidation, when he simultaneously made his complaints known through other means” such as informing a nurse that officers beat him and “air[ing] his complaints and concerns in writing outside of the grievance procedures[.]”); Johnson, 2016 U.S. Dist. LEXIS 165987, *13-14 (rejecting plaintiff’s contention that administrative remedies were unavailable to him because he was threatened by correction officers but continued to make and send formal complaints to prison officers and other New York State officials). Indeed, plaintiff’s own deposition testimony belies his claim that he was afraid to grieve the February 6, 2015 incident. Plaintiff testified during his deposition that he was not afraid to file a federal lawsuit while still incarcerated at Gowanda, despite alleged threats or harassment, because he was informed that he would be transferred to a different facility immediately after his disciplinary hearing. It defies logic that plaintiff would be unafraid to file a lawsuit because he believed a transfer of facilities was imminent, but that he would still be fearful of filing a grievance. Additional inconsistencies and contradictions in plaintiff’s deposition testimony cast further doubt on his claim that he was afraid to file a grievance. Not only does plaintiff contradict himself as to whether he filed a grievance, but he also provides varying rationales as to why he did not file one. Plaintiff testified that he did not file a grievance because he was fearful of the officers. However, he also testified that he did not file a grievance because he believed the process was ineffective and he wanted someone from the “outside” to investigate. See Dailey v. Fuller, 9:15-cv-1051, 2016 U.S. Dist. LEXIS 168482 (NDNY Dec. 5, 2016) (“Even where a complaint or affidavit contains specific assertions, the allegations may still be deemed conclusory if they are: (1) largely unsubstantiated by any other direct evidence and (2) so replete with inconsistencies and improbabilities that no reasonable juror would undertake the suspension of belief necessary to credit the allegations[.]”) (internal citations and quotations omitted). *7 Finally, even if the Court were to conclude that plaintiff had been threatened at Gowanda and that those threats prevented him from filing a grievance, there has been no showing that administrative remedies remained unavailable to plaintiff after he was transferred to Upstate. DOCCS procedures provides that an inmate may request an extension of the time limit to file a grievance within forty-five days of the date of the alleged occurrence. See N.Y. Comp. Codes R. & Regs., § 701.6(g). Here, the alleged assault took place on February 6, 2015 and plaintiff was transferred to Upstate on or about March 6, 2015. When plaintiff arrived at Upstate, approximately twenty-nine days had elapsed since the alleged assault, and plaintiff could have timely requested an extension of time to file a grievance. In fact, plaintiff had an additional seventeen days after arriving at Upstate to request an extension of time. See Bookman v. Linstrand, 9:15-CV-1542, 2018 U.S. Dist. LEXIS 25157 (NDNY February 14, 2018) (“Even assuming that [plaintiff’s allegations] could be construed as creating an issue of fact with respect to the grievance process at GMCF, it does not create an issue of fact with respect to the availability of the grievance process at Clinton, where plaintiff was housed in the immediate aftermath of the alleged assault.”); Smith v. Costello, 9:15-CV-0401, 2017 U.S. Dist. LEXIS 31341 (NDNY March 3, 2017) (specific threats against plaintiff with respect to filing a grievance did not excuse his failure to exhaust administrative remedies where plaintiff had thirty-three days to request an extension of time to file after his transfer from the facility where the threats occurred); Wallace v. Fisher, 9:13-CV-1208, 2015 U.S. Dist. LEXIS 169256 (NDNY Dec. 18, 2015) (concluding that even if plaintiff’s administrative remedies were unavailable at Watertown Correctional Facility, plaintiff did not persuade the Court that his administrative remedies continued to be unavailable after his transfer to Gouverneur Correctional Facility, since after his transfer plaintiff had twelve days in which to request an extension of the twenty-one day deadline for filing a grievance). Thus, the Court finds no basis in the record to excuse plaintiff’s failure to exhaust his administrative remedies. CONCLUSION For the foregoing reasons, it is recommended that defendants Lynn Wasielewski’s, Rebecca McDaniel’s, Paul Burke’s, Dennis Becker’s and Sabato Parisi’s motion for summary judgment be granted and the complaint dismissed. (Dkt. No. 61). Pursuant to 28 U.S.C. § 636(b)(1), it is hereby ORDERED that this Report, Recommendation and Order be filed with the Clerk of Court. Unless otherwise ordered by Judge Arcara, any objections to this Report and Recommendation must be filed with the Clerk of Court within fourteen days of service of this Report and Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 196 of 300
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Recommendation in accordance with the above statute, Rules 72(b), 6(a), and 6(d) of the Federal Rules of Civil Procedure, and W.D.N.Y. L. R. Civ. P. 72. Any requests for an extension of this deadline must be made to Judge Arcara. Failure to file objections, or to request an extension of time to file objections, within fourteen days of service of this Report and Recommendation WAIVES THE RIGHT TO APPEAL THE DISTRICT COURT'S ORDER. See Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989). The District Court will ordinarily refuse to consider de novo arguments, case law and/or evidentiary material which could have been, but were not, presented to the Magistrate Judge in the first instance. See Paterson–Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1st Cir. 1988). Finally, the parties are reminded that, pursuant to W.D.N.Y. L.R.Civ.P. 72(b), written objections “shall specifically identify the portions of the proposed findings and recommendations to which objection is made and the basis for each objection, and shall be supported by legal authority.” Failure to comply with these provisions may result in the District Court’s refusal to consider the objection. SO ORDERED. All Citations Not Reported in Fed. Supp., 2018 WL 4732755 Footnotes 1 The facts described herein are taken from pleadings, motion papers, discovery and exhibits filed in this lawsuit. Also, because plaintiff is proceeding pro se, the Court has considered all of his submissions in support of his complaint and in opposition to defendants' motion for summary judgment, regardless of the form in which they have been submitted. 2 A DOCCS Directive dated November 12, 2011 provides that inmates serving sentences for certain nonviolent crimes may receive merit time allowances against their sentences provided they have, inter alia, “achieved certain significant programmatic objections.” (Dkt. No. 69, pg. 5). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 197 of 300
Lewis v. Wasielewski, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2018 WL 4692476 Only the Westlaw citation is currently available. United States District Court, W.D. New York. Alfredo LEWIS, Plaintiff, v. Lynn WASIELEWSKI, Rebecca McDaniel Paul Burke, Dennis Becker and Sabato Parisi, Defendants. 15-CV-168-A | Signed 10/01/2018 Attorneys and Law Firms Alfredo Lewis, Uniondale, NY, pro se. David J. Sleight, Office of the Attorney General, Buffalo, NY, for Defendants. DECISION AND ORDER HONORABLE RICHARD J. ARCARA, UNITED STATES DISTRICT JUDGE *1 This pro se civil rights case was referred to Magistrate Judge Michael J. Roemer for the conduct of pretrial proceedings pursuant to 28 U.S.C. § 636(b)(1). On July 10, 2018, the Magistrate Judge filed a Report and Recommendation (Dkt. No. 71) recommending that defendants' motion for summary judgment pursuant to Fed. R. Civ. P. 56 (Dkt. No. 61) be granted. On September 10, 2018, pro se plaintiff Alfredo Lewis filed objections to the Report and Recommendation. (Dkt. No. 75). Defendants filed a response on September 10, 2018. (Dkt. No. 76). Oral argument is unnecessary. Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which pro se plaintiff Lewis has objected. Upon de novo review after reviewing the submissions of the parties, the Court adopts the Magistrate Judge’s findings and conclusions. It is therefore ORDERED, pursuant to 28 U.S.C. § 636(b)(1), and for the reasons stated in the Report and Recommendation (Dkt. No. 71), that the defendants' Rule 56 motion for summary judgment (Dkt. No. 61) is granted. The Clerk of the Court shall enter judgment on behalf of defendants Lynn Wasielewski, Rebecca McDaniel, Paul Burke, Dennis Becker, and Sabato Parisi and shall close the case. IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2018 WL 4692476 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 198 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2019 WL 8015209 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Seth LOGAN, Plaintiff, v. Superintendent GRAHAM, Auburn Correctional Facility; C.O. Pflueger, Auburn Correctional Facility; Officer Scott Jones, Auburn Correctional Facility, formerly known as C.O. Smith; and C.O. M. Gould, Auburn Correctional Facility, Defendants. 9:18-CV-0291 (DNH/ML) | Signed 11/26/2019 Attorneys and Law Firms SETH LOGAN, Plaintiff, Pro Se, 117 Avery Avenue, Buffalo, New York 14210. LETITIA A. JAMES, OF COUNSEL: AIMEE COWAN, ESQ., Assistant Attorney General, Attorney General for the State of New York, Counsel for Defendants, 300 South State Street, Suite 300, Syracuse, New York 13202. REPORT-RECOMMENDATION MIROSLAV LOVRIC, United States Magistrate Judge *1 This matter has been referred to me for a Report and Recommendation by the Honorable David N. Hurd, United States District Judge. Currently before the Court, in this civil rights action filed by Seth Logan (“Plaintiff”) against Superintendent Graham, Auburn Correctional Facility, C.O. Pflueger, 1 Auburn Correctional Facility, Officer Scott Jones, Auburn Correctional Facility, formerly known as C.O. Smith, and C.O. M. Gould, Auburn Correctional Facility (collectively “Defendants”), is Defendants’ motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 28). For the reasons set forth below, I recommend that Defendants’ motion be granted in part and denied in part. TABLE OF CONTENTS I. RELEVANT BACKGROUND...–––– A. Plaintiff's Claims...–––– B. Procedural History...–––– C. Statement of Undisputed Material Facts...–––– D. Parties’ Briefing on Defendants’ Motion for Summary Judgment...–––– II. RELEVANT LEGAL STANDARDS...–––– A. Standard Governing a Motion for Summary Judgment...–––– B. Standard Governing Exhaustion of Administrative Remedies...–––– III. ANALYSIS...–––– A. Plaintiff's Failure to Oppose the Merits of Defendants’ Summary Judgment Motion...–––– B. Exhaustion of Grievances AUB-67199-15 and AUB-67567-15...–––– C. Whether Plaintiff's First Amendment Retaliation Claims Should Nevertheless be Dismissed...–––– D. Doctrine of Qualified Immunity...–––– I. RELEVANT BACKGROUND A. Plaintiff's Claims Generally, liberally construed, Plaintiff's Complaint asserts claims of retaliation against Defendants in violation of the First Amendment. (Dkt. No. 1; Dkt. No. 6.) The Court's Decision and Order dated May 4, 2018, thoroughly outlines Plaintiff's allegations and claims. (Dkt. No. 6.) B. Procedural History On March 8, 2018, Plaintiff commenced this action by filing a verified Complaint against Defendants, Lieutenant Vasill, and Lieutenant Abate (Dkt. No. 1) together with a motion for leave to proceed in forma pauperis (Dkt. No. 2). On May 4, 2018, the Court granted Plaintiff's motion to proceed in forma pauperis. (Dkt. No. 6.) In addition, the Court ordered that Plaintiff's retaliation claims against Defendants survive sua sponte review, but the Court dismissed Plaintiff's remaining claims including those against Lieutenant Vasill and Lieutenant Abate. (Id.) Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 199 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 On January 25, 2019, Defendants filed a letter motion requesting dismissal for failure to prosecute. (Dkt. No. 27.) On March 6, 2019, Defendants filed a motion for summary judgment pursuant to Fed. R. Civ. P. 56 and a motion to dismiss for lack of prosecution. (Dkt. No. 28.) These motions were referred to United Stated Magistrate Judge David E. Peebles for a Report and Recommendation. On March 27, 2019, Magistrate Judge Peebles issued a Report and Recommendation, which recommended that (1) the Complaint be dismissed based on Plaintiff's failure to prosecute and to comply with the Court's orders and local rules of practice, and (2) that Defendants’ motion for summary judgment be denied as moot. (Dkt. No. 30.) On April 15, 2019, Plaintiff filed a change of address with the Court. (Dkt. No. 32.) As a result, on April 15, 2019, United States District Judge David N. Hurd sua sponte granted an extension of time to file objections to United Stated Magistrate Judge David E. Peebles's Report- Recommendation of March 27, 2019. (Dkt. No. 33.) Plaintiff did not file any objections to the Report-Recommendation dated March 27, 2019. (See generally Docket Sheet.) *2 On July 3, 2019, the Court denied Defendants’ motion to dismiss and referred to me for consideration of Defendants’ motion for summary judgment. (Dkt. No. 35.) On July 3, 2019, Plaintiff was provided another opportunity to oppose Defendants’ motion with a response due by August 20, 2019, and a reply due by August 26, 2019. (See text notice dated 7/3/19.) On September 9, 2019, the Court issued a text order granting Plaintiff yet another opportunity to oppose Defendants’ motion with a deadline of September 30, 2019. (Dkt. No. 37.) On October 1, 2019, Plaintiff filed a response in opposition to Defendants’ motion. (Dkt. No. 39.) C. Statement of Undisputed Material Facts Unless otherwise noted, the following facts were asserted and supported by Defendants in their Rule 7.1 Statement and not denied by Plaintiff in a Rule 7.1 Response. (Compare Dkt. No. 28, Attach. 1 [Defs.’ Rule 7.1 Statement] with Dkt. No. 39 [Pl.’s Response].) 1. Plaintiff was convicted in 2009 of Attempted Assault in the First and Second Degree. 2. All claims in this matter arose out of Plaintiff's confinement at Auburn Correctional Facility (“Auburn”), as a result of his felony convictions in 2009. 3. Plaintiff was released from prison to the Division of Parole on January 7, 2019. 2 4. In his Complaint, Plaintiff claims that on May 9, 2015, Defendant Pflueger stopped Plaintiff in the Auburn recreation yard, accused Plaintiff of being a white supremacist and stated that he would be searching Plaintiff's cell for gang material. 5. Plaintiff alleges that the next day, on May 10, 2015, Defendant Pflueger threatened him while Plaintiff was exiting his cell, stating that Plaintiff “ain't gonna be around here for long. They're gonna get you. We're not sure how yet or for what, but it's gonna happen.” 6. According to Plaintiff, Defendant Pflueger did not make any specific threats about anything that he specifically was going to do to Plaintiff. 7. Plaintiff filed a grievance on May 10, 2015, complaining about the alleged incident of May 9, 2015. 8. Defendant Pflueger responded to the grievance by memo and stated that he stopped Plaintiff in the yard on May 9, 2015 after observing tattoos that could be interpreted as gang affiliation tattoos. 9. Defendant Pflueger stated that he passed the information on to the Early Warning Box—which is an avenue to convey information to Auburn Correctional Facility's intelligence unit—and denied threatening or harassing Plaintiff in any way. *3 10. Plaintiff alleges that over a month later, on June 17, 2015, Defendant Pflueger fired Plaintiff from his job as a feed up porter. 11. Plaintiff was employed as a feed up porter at Auburn for approximately one month until he was terminated on June 17, 2015. 12. A feed up porter's duties include retrieving food trays from the mess hall and feeding inmates who are confined to their cell for disciplinary reasons. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 200 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 13. On the morning of June 17, 2015, Defendant Pflueger witnessed Plaintiff pass an unidentified item into the cell of another inmate. 14. Defendant Pflueger ordered Plaintiff to return to his cell. 15. Plaintiff yelled profanities as he went back to his cell. 16. While in his cell, Plaintiff yelled “that faggot motherfucker fired me.” 17. Plaintiff shouted these profanities loud enough to communicate with another inmate on a different floor. 18. Plaintiff alleges that Defendant Pflueger fired him as a feed up porter in retaliation for the grievance that Plaintiff filed dated May 10, 2015. 19. Plaintiff's only basis for this belief is that there was “no other reason” for Defendant Pflueger to fire him. 20. Based on Plaintiff's behavior on the morning of June 17, 2015, Defendant Pflueger authored a misbehavior report dated June 17, 2015, that charged Plaintiff with several DOCCS Directive violations including disobeying a direct order, creating a disturbance, harassment, and making threats. 21. Defendant Correction Officer Scott Jones endorsed the misbehavior report as a witness to a portion of these events. 22. At the time Defendant Jones endorsed the misbehavior report dated June 17, 2015, he had no knowledge that Plaintiff had filed a grievance against Defendant Pflueger on May 10, 2015. 23. Plaintiff testified that he had never interacted with Defendant Jones before this incident on June 17, 2015. 24. Plaintiff testified that he had no basis to believe that at the time Defendant Jones endorsed the misbehavior report, Defendant Jones knew that Plaintiff had filed any grievances against Defendant Pflueger. 25. Plaintiff filed a grievance regarding the incident on June 17, 2015, but that grievance was denied. 26. Defendant Pflueger was never counseled or disciplined as a result of the incident on June 17, 2015. 27. As a result of the misbehavior report dated June 17, 2015, Plaintiff was found guilty of all charges at a disciplinary hearing and sentenced to 30 days of keep-lock confinement. 28. Plaintiff filed another grievance dated July 21, 2015, which alleged that on July 8, 2015, he received a false report authored by Defendant Correction Officer Mark Gould in which, Defendant Gould recommended Plaintiff be placed in administrative segregation. 29. Defendant Gould recommended that Plaintiff be placed in administrative segregation based on information he received from confidential informants, that Plaintiff planned to assault Defendant Pflueger when he was released from keep-lock confinement. 30. Plaintiff was given a hearing with respect to whether he should be in administrative segregation. 31. Plaintiff agreed with the recommendation to be placed in administrative segregation. 32. Plaintiff did not know Defendant Gould prior to his recommendation that Plaintiff be placed in administrative segregation. *4 33. Plaintiff testified that he believed Defendant Gould made the recommendation to place Plaintiff in administrative segregation on behalf of Defendant Pflueger in retaliation for Plaintiff's grievances, because “there [was] no other reason [for Defendant Gould] to do it.” 34. Plaintiff admitted he has no direct evidence that Defendant Gould recommended administrative segregation based on the grievances filed by Plaintiff against Defendant Pflueger. 35. Plaintiff has no evidence that Defendant Gould even knew about any grievances filed by Plaintiff against Defendant Pflueger. 36. Plaintiff is not aware of any conversations that Defendant Gould had with Defendant Pflueger in which they discussed that Defendant Gould should file an administrative segregation recommendation based on false information. 37. Plaintiff also alleged that after he was removed from his cell in the Special Housing Unit on July 9, 2015, items went missing after another inmate witnessed Defendant Pflueger enter Plaintiff's cell. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 201 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 38. Defendant Pflueger did not pack Plaintiff's cell and he did not remove any of Plaintiff's property. 39. The only basis for Plaintiff's contention that Defendant Pflueger destroyed his property is that Michael Betters, another inmate, reported seeing Defendant Pflueger enter Plaintiff's cell. 40. According to Plaintiff, Michael Betters could not actually see Defendant Pflueger in Plaintiff's cell. 41. Further, Plaintiff does not know who transported his property to his new cell in the Special Housing Unit. 42. Plaintiff filed another grievance alleging that on August 4, 2015, and August 6, 2015, Defendant Pflueger threatened Plaintiff while he was training another officer. 43. Defendant Pflueger responded to the grievance and affirmed that on August 4, 2015, and August 6, 2015, he showed various new officers the Special Housing Unit area, but they did not stop at Plaintiff's cell and he certainly never made any threatening or harassing statements to Plaintiff. 44. Plaintiff testified that at no point during his incarceration did Defendant Pflueger use any force against him. 45. Plaintiff is not alleging any physical injuries with respect to any of his claims. 46. The only basis on which Plaintiff brings retaliation claims against Defendant Graham is because he denied Plaintiff's grievances and allowed Defendant Pflueger's behavior to continue. 47. Other than the grievances he filed, Plaintiff never sent Defendant Graham any other correspondence about these incidents and he never spoke with Defendant Graham in person about them. Exhaustion of Administrative Remedies 48. Plaintiff was familiar with the grievance process at Auburn Correctional Facility during the relevant time period. 49. Plaintiff was aware of how to properly file a grievance and where to appeal if he disagreed with the decision. 50. More specifically, Plaintiff was aware that a grievance must be submitted to the Inmate Grievance Review Committee (“IGRC”) and a decision by the IGRC could be appealed to the Superintendent. 51. Further, Plaintiff was aware that a decision by the Superintendent could be appealed to the Central Office Review Committee (“CORC”). 52. Plaintiff testified that if an inmate does not receive a response to his appeal to CORC, he must write to CORC and inquire as to the status of his appeal. *5 53. Plaintiff filed Grievance AUB-67199-15, in which he complained that he was “labeled a gang member” by Defendant Pflueger. 54. After an investigation, the Superintendent denied Plaintiff's grievance and Defendant Pflueger was never counseled or disciplined. 55. Plaintiff also filed Grievance AUB-67567-15, in which he complained that on July 8, 2015, he received a false report authored by Defendant Gould in which Defendant Gould recommended Plaintiff be placed in administrative segregation. 56. Grievance AUB 67567-15 also alleged that after Plaintiff was removed from his cell in the Special Housing Unit on July 9, 2015, items went missing after another inmate witnessed Defendant Pflueger packing Plaintiff's cell. 57. Defendant Graham denied Plaintiff's Grievance AUB-67567-15. D. Parties’ Briefing on Defendants’ Motion for Summary Judgment 1. Defendants’ Memorandum of Law Generally, in support of their motion for summary judgment, Defendants assert three arguments. (See generally Dkt. No. 28, Attach. 3 [Defs.’ Mem. of Law].) First, Defendants argue that Plaintiff failed to exhaust his administrative remedies with respect to grievances AUB-67199-15 and AUB-675667-15. (Id.) More specifically, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 202 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 Defendants argue that the Prison Litigation Reform Act requires prisoners who bring a lawsuit in federal court to first exhaust their available administrative remedies; this requirement is mandatory such that, failure to comply subjects the complaint to dismissal. 3 (Id.) Further, Defendants argue that the New York State Department of Corrections and Community Services (“DOCCS”) has the following three- tiered administrative review and appeals process for prisoner grievances: (1) review by the IGRC, (2) appellate review of the IGRC decision by the prison superintendent, and (3) appellate review of the prison superintendent by CORC. (Id.) Defendants argue that Plaintiff failed to appeal the prison superintendent's decision with respect to grievances AUB-67199-15 and AUB-675667-15, to CORC and thus, the claims contained in those grievances should be dismissed for Plaintiff's failure to exhaust his administrative remedies. (Id.) Second, Defendants argue that Plaintiff's first amendment retaliation claims should be dismissed because (a) with respect to Defendant Pflueger, (i) he lacks authority to “fire” an inmate from his job, (ii) the record lacks any evidence of a causal connection between Plaintiff's grievance of May 10, 2015, and the misbehavior report of June 17, 2015, except temporal proximity, which is insufficient to survive a motion for summary judgment, (iii) the misbehavior report of June 17, 2015, was truthful and Plaintiff admitted that he was appropriately charged with creating a disturbance and harassment, (iv) Defendants presented non-retaliatory reasons for Defendant Pflueger “firing” Plaintiff from his porter duties and authoring the misbehavior report of June 17, 2015, (v) the alleged verbal harassment and threats are not considered adverse actions for purposes of retaliation, (vi) even if the alleged verbal harassment and threats did constitute an adverse action, Plaintiff failed to demonstrate any evidence of a causal connection, (vii) there is no evidence of a causal connection between Defendant Gould's recommendation that Plaintiff be placed in administrative segregation and Plaintiff's grievances filed against Defendant Pflueger, (viii) there is no evidence that Defendant Pflueger removed or destroyed Plaintiff's property, and (ix) there is no evidence of a causal nexus between the grievances he filed and Defendant Pflueger allegedly destroying his property; (b) with respect to Defendant Jones, (i) there is no evidence that he had any knowledge that Plaintiff filed a grievance against Defendant Pflueger, and (ii) the record is devoid of any evidence establishing why he would file a false misbehavior report against Plaintiff on behalf of Defendant Pflueger; (c) with respect to Defendant Gould, (i) Plaintiff agreed with the recommendation that he remain in administrative segregation, (ii) there is no evidence in the record to support a causal connection between Plaintiff's grievance against Defendant Pflueger on May 10, 2015, and Defendant Gould's administrative segregation recommendation on July 21, 2015, and (iii) there is no evidence that Defendant Gould was aware of Plaintiff's grievance against Defendant Pflueger; and (d) with respect to Defendant Graham, (i) in the event that the claims against Defendants Pflueger, Jones, and Gould are dismissed, the claims against Defendant Graham must also be dismissed because there is no supervisor liability where there is no established underlying constitutional violation, and (ii) even if the claims against Defendants Pflueger, Jones, and Gould are not dismissed, the claims against Defendant Graham still should be dismissed because he was not personally involved in the alleged constitutional violations. (Id.) *6 Third, Defendants argue that, in the alternative, they are entitled to dismissal pursuant to the doctrine of qualified immunity. (Id.) 2. Defendants’ First Supplemental Letter Brief Generally in their first supplemental letter brief, Defendants re-assert the arguments set forth in their memorandum of law and assert that (1) Plaintiff has repeatedly failed to oppose Defendants’ motion despite being provided with notice of the consequences of failing to respond to the motion two times, and (2) as a result of Plaintiff's failure to respond, the Court should deem (a) Defendants’ factual assertions as true, and (b) Plaintiff to have consented to the legal arguments contained in Defendants’ memorandum of law. (Dkt. No. 36.) 3. Defendants’ Second Supplemental Letter Brief Generally in their second supplemental letter brief, Defendants re-assert the arguments set forth in their memorandum of law and assert that (1) Plaintiff sent Defendants a “Response to Dispositive Motions,” which incorrectly indicated that Defendants’ motion is based solely on Plaintiff's timeliness and otherwise failed to address Defendants’ arguments as to the merits of his claims, (2) Plaintiff has now failed to oppose Defendants’ motion three times after receiving notice that his response was required, and (3) despite Plaintiff's request in his response for additional time to respond, the Court should not grant this request because their motion has been pending for nearly one year Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 203 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 and Plaintiff “has been given great latitude with respect to the Court's deadlines in this matter.” (Dkt. No. 38.) 4. Plaintiff's “Response to Dispositive Motions” Generally, in opposition to Defendants’ motion for summary judgment, Plaintiff acknowledged his failure to meet deadlines and asked that the Court consider “many mitigating factors that have contributed to this short coming” including his release from prison, the requirements of his parole, and his criminal history. (Dkt. No. 39.) In addition, Plaintiff asserts that “all these Motions to Dismiss this complaint have been based on timeliness.” (Id.) Plaintiff did not file a response to Defendants’ Statement of Material Facts, an affidavit setting forth any factual assertions, an opposition memorandum of law, or any document that responded to Defendants’ legal arguments. (See generally Dkt. No. 39.) In addition, Plaintiff did not request any additional time to provide a more thorough response to Defendants’ motion. (Id.) II. RELEVANT LEGAL STANDARDS A. Standard Governing a Motion for Summary Judgment Under Fed. R. Civ. P. 56, summary judgment is warranted if “the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute of fact is “genuine” if “the [record] evidence is such that a reasonable jury could return a verdict for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 As for the materiality requirement, a dispute of fact is “material” if it “might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. *7 In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the movant. Anderson, 477 U.S. at 255. In addition, “[the movant] bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the ... [record] which it believes demonstrate[s] the absence of any genuine issue of material fact.” Celotex v. Catrett, 477 U.S. 317, 323-24 (1986). However, when the movant has met its initial burden, the non-movant must come forward with specific facts showing a genuine issue of material fact for trial. Fed. R. Civ. P. 56(a), (c), (e). Implied in the above-stated burden-shifting standard is the fact that, where a non-movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute–even if that non-movant is proceeding pro se. 5 (This is because the Court extends special solicitude to the pro se litigant largely by ensuring that he or she has received notice of the consequences of failing to properly respond to the motion for summary judgment.) 6 As has often been recognized by both the Supreme Court and Second Circuit, even pro se litigants must obey a district court's procedural rules. 7 Of course, when a non-movant willfully fails to respond to a motion for summary judgment, “[t]he fact that there has been no [such] response ... does not ... [by itself] mean that the motion is to be granted automatically.” Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). Rather, as indicated above, the Court must assure itself that, based on the undisputed material facts, the law indeed warrants judgment for the movant. Champion, 76 F.3d at 486; Allen v. Comprehensive Analytical Group, Inc., 140 F. Supp. 2d 229, 232 (N.D.N.Y. 2001) (Scullin, C.J.); N.D.N.Y. L.R. 7.1(b)(3). What the non- movant's failure to respond to the motion does is lighten the movant's burden. For these reasons, this Court has often enforced Local Rule 7.1(a)(3) by deeming facts set forth in a movant's statement of material facts to be admitted, where (1) those facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement 8 – even when the non-movant was proceeding pro se. 9 Similarly, in this District, where a non-movant has willfully failed to respond to a movant's properly filed and facially meritorious memorandum of law, the non-movant is deemed to have “consented” to the legal arguments contained in that memorandum of law under Local Rule 7.1(b)(3). 10 Stated another way, when a non-movant fails to oppose a legal argument asserted by a movant, the movant may succeed on the argument by showing that the argument possesses facial merit, which has appropriately been characterized as a “modest” burden. See N.D.N.Y. L.R. 7.1(b)(3) (“Where a properly filed motion is unopposed and the Court determined that the moving party has met its burden to demonstrate Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 204 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 entitlement to the relief requested therein....”); Rusyniak v. Gensini, 07-CV-0279, 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (Suddaby, J.) (collecting cases); Este-Green v. Astrue, 09-CV-0722, 2009 WL2473509, at *2 & n.3 (N.D.N.Y. Aug. 7, 2009) (Suddaby, J.) (collecting cases). B. Standard Governing Exhaustion of Administrative Remedies *8 The Prison Litigation Reform Act of 1995 (“PLRA”) requires that prisoners who bring suit in federal court must first exhaust their available administrative remedies: “No action shall be brought with respect to prison conditions under § 1983 ... 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. The PLRA was enacted “to reduce the quantity and improve the quality of prisoner suits” by “afford[ing] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Porter v. Nussle, 534 U.S. 516, 524-25 (2002). In this regard, exhaustion serves two major purposes. First, it protects “administrative agency authority” by giving the agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court, and it discourages disregard of the agency's procedures.” Woodford v. Ngo, 548 U.S. 81, 89 (2006). Second, exhaustion promotes efficiency because (a) “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court,” and (b) “even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration.” Woodford, 548 U.S. at 89. “[T]he 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, 534 U.S. at 532. In accordance with the PLRA, DOCCS has made available a well-established inmate grievance program. 7 N.Y.C.R.R. § 701.7. Generally, the DOCCS Inmate Grievance Program (“IGP”) involves the following three-step procedure for the filing of grievances. 7 N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7. 11 First, an inmate must file a complaint with the facility's IGP clerk within a certain number of days of the alleged occurrence. 12 If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. A representative of the facility's IGRC has a certain number of days from receipt of the grievance to informally resolve the issue. If there is no such informal resolution, then the full IGRC conducts a hearing within a certain number of days of receipt of the grievance, and issues a written decision within a certain number of days of the conclusion of the hearing. Second, a grievant may appeal the IGRC decision to the facility's superintendent within a certain number of days of receipt of the IGRC's written decision. The superintendent is to issue a written decision within a certain number of days of receipt of the grievant's appeal. Third, a grievant may appeal to CORC within a certain number of days of receipt of the superintendent's written decision. CORC is to render a written decision within a certain number of days of receipt of the appeal. In addition, “[t]he regulations [ ] provide that if the plaintiff does not get a ‘receipt’ from the CORC within 45 days of the date he filed his appeal, he should contact the IGP to make sure that his appeal was ‘received.’ ” Bell v. Napoli, 17- CV-0850, 2018 WL 6506072, at *5 (N.D.N.Y. Dec. 11, 2018) (Baxter, M.J.) (citing 7 N.Y.C.R.R. § 701.5(d)(3)(i)). It is important to note that these procedural requirements contain several safeguards. For example, if an inmate could not file such a complaint within the required time period after the alleged occurrence, he or she could apply to the facility's IGP Supervisor for an exception to the time limit based on mitigating circumstances. If that application was denied, the inmate could file a complaint complaining that the application was wrongfully denied. 13 Moreover, any failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, can–and must–be appealed to the next level, including CORC, to complete the grievance process. 14 *9 Generally, if a prisoner has failed to properly follow each of the required three steps of the above-described grievance procedure prior to commencing litigation, he has failed to exhaust his administrative remedies, and his claims are subject to dismissal. Woodford, 548 U.S. at 93; Porter, 534 U.S. at 524; Ruggiero v. Cnty. of Orange, 467 F.3d 170, 175 (2d Cir. 2006). However, a plaintiff's failure to exhaust does not end the inquiry. The Second Circuit has held that a three- part inquiry is appropriate where a defendant contends that a prisoner has failed to exhaust his available administrative remedies, as required by the PLRA. Hemphill v. State of New York, 380 F.3d 680, 686, 691 (2d Cir. 2004), accord, Ruggiero, 467 F.3d at 175. First, “the court must ask whether [the] Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 205 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 administrative remedies [not pursued by the prisoner] were in fact ‘available’ to the prisoner.” Hemphill, 380 F.3d at 686 (citation omitted). Second, if those remedies were available, “the court should ... inquire as to whether [some or all of] the defendants may have forfeited the affirmative defense of non- exhaustion by failing to raise or preserve it ... or whether the defendants’ own actions inhibiting the [prisoner's] exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense.” Id. [citations omitted]. Third, if the remedies were available and some of the defendants did not forfeit, and were not estopped from raising, the non-exhaustion defense, “the Court should consider whether ‘special circumstances’ have been plausibly alleged that justify the prisoner's failure to comply with the administrative procedural requirements.” Id. [citations and internal quotations omitted]. 15 III. ANALYSIS A. Plaintiff's Failure to Oppose the Merits of Defendants’ Summary Judgment Motion Before turning to the merits of Defendants’ motion, a threshold issue to be addressed is the legal significance of Plaintiff's failure to oppose the merits of Defendants’ motion. Pursuant to Local Rule 7.1(b)(3), by failing to oppose Defendants’ motion, Plaintiff has effectively consented to the granting of the relief sought. That rule provides as follows: Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non- moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown. N.D.N.Y. L.R. 7.1(b)(3); see also Jackson v. Fed. Express, 766 F.3d 189, 194 (2d Cir. 2014) (holding that the district courts may enter summary judgment in favor of the moving party where the non-moving party fails to respond in opposition, but not without first “ensur[ing] that each statement of material fact is support by record evidence sufficient to satisfy the movant's burden of production” and “determin[ing] whether the legal theory of the motion is sound”). In this case, Plaintiff has not responded to the merits of Defendants’ motion. The motion was properly filed by Defendants, and Defendants through their motion have met their burden of demonstrating entitlement to some of the relief requested. With respect to the question of whether Defendants have met their burden, I note that the “burden of persuasion is lightened such that, in order to succeed, [their] motion need only be ‘facially meritorious.’ ” See Rodriguez v. Goord, 04- CV-0358, 2007 WL 4246443, at *1 (N.D.N.Y. Nov. 27, 2007) (Scullin, J., adopting Report-Recommendation on clear error review) (finding that determination of whether a movant has satisfied its burden to demonstrate entitlement to a dismissal under Local Rule 7.1(b)(3) “is a more limited endeavor than a review of a contested motion to dismiss” (citing cases)). Because Defendants have accurately cited both proper legal authority and evidence in the record supporting the grounds on which their motion is based with respect to Defendants Jones and Gould as set forth below, and Plaintiff has failed to respond in opposition to the merits of the motion for summary judgment, I find that Defendants’ motion is facially meritorious. Jackson, 766 F.3d at 194. Accordingly, I recommend that the Court grant Defendants’ motion with respect to Defendants Jones and Gould on this basis. *10 It should also be noted that there are additional consequences flowing from Plaintiff's failure to file an opposition to Defendants’ Local Rule 7.1(a)(3) Statement of Material Facts. Local Rule 7.1 provides, in relevant part, that “[t]he Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert.” N.D.N.Y. L.R. 7.1(a)(3) (emphasis in original). Courts in this district have routinely enforced this rule in cases where a non- movant has failed to properly respond. See, e.g., Elgamil v. Syracuse Univ., 99-CV-0611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2010) (McCurn, J.) (listing cases). Undeniably, pro se litigants are entitled to some measure of forbearance when defending against summary judgment motions. Jemzura v. Public Serv. Comm'n, 961 F. Supp. 406, 415 (N.D.N.Y. 1997) (McAvoy, J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with the failure to comply with the court's local rules. Robinson v. Delgado, 96-CV-0169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 206 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 J., adopting Report-Recommendation on clear error review.). Stated differently, “a pro se litigant is not relieved of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Latouche v. Tompkins, 09-CV-0308, 2011 WL 1103045, at *1 (N.D.N.Y. Mar. 23, 2011) (Mordue, J.). Here, because Plaintiff was warned of the consequences of failing to properly respond to Defendants’ Local Rule 7.1 Statements (Dkt. No. 28 at 2; text notice dated July 3, 2019), and he has failed to do so, I recommend that the Court deem the facts contained in Defendants’ Local Rule 7.1(a) (3) Statements as having been admitted to the extent they are supported by accurate record citations. See, e.g., Latouche, 2011 WL 1103045, at *1; see also Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996). As to any facts not contained in Defendants’ Local Rule 7.1(a)(3) Statements, in light of the procedural posture of this case, the Court is “required to resolve all ambiguities and draw all permissible factual inferences” in favor of Plaintiff. Terry, 336 F.3d at 137. B. Exhaustion of Grievances AUB-67199-15 and AUB-67567-15 There is no dispute in this case that Plaintiff filed grievances AUB-67199-15 dated May 10, 2015, and AUB-67567-15 dated July 21, 2015, and that he appealed the denial of these grievances to the facility superintendent. The parties only dispute whether Plaintiff completed the third step in the grievance process by appealing to CORC. Defendants submitted proof in admissible form by way of an affidavit from Rachael Seguin, the custodian of the records maintained by CORC. (Dkt. No. 28, Attach. 16.) In her affidavit, Ms. Seguin stated that she searched record appeals received by CORC filed by Plaintiff, and her search revealed “no appeal for Grievance AUB-67199-15” and “no appeal for Grievance AUB-67567-15.” (Id. at ¶¶11-12.) However, with respect to grievance AUB-67199-15, Plaintiff alleged in his verified Complaint 16 that “[o]n [July 3, 2015, he] received [the denial from the Superintendent] and requested that it be appealed to the Central Office Review Committee.” (Dkt. No. 1 at 5.) Similarly, Plaintiff testified that after receiving the denial of his grievance from the Superintendent, he appealed to CORC. (Dkt. No. 28, Attach. 5 at 46.) Moreover, Plaintiff alleged in his verified Complaint that on August 15, 2015, he “composed a letter to the C.O.R.C. Inmate Grievance Program Supervisor Karen Bellamy inquiring as to whether or not request for appeal was received.” (Dkt. No. 1 at 5.) Likewise, Plaintiff testified that he wrote a letter to CORC asking about the status of his appeal. (Dkt. No. 28, Attach. 5 a 46.) Furthermore, Plaintiff alleged in his verified Complaint that on September 2, 2015, he “composed a letter to Auburn C.F. I.G.P. Supervisor Cheryl Parmiter inquiring as to whether or not [his] appeal was submitted as requested.” (Dkt. No. 1 at 5.) Similarly, Plaintiff testified that “I believe that one I never received a response from Central Office. So I wrote Albany's – Auburn's I.G.R.C. and asked them what happened and they said they never received an appeal.” (Dkt. No. 28, Attach. 5 at 46.) *11 In addition, with respect to grievance AUB-67567-15, Plaintiff alleged in his verified Complaint that “[o]n [August 15, 2015, he] received [the denial from the superintendent] and requested that it be appealed to the C.O.R.C.” (Dkt. No. 1 at 6.) Moreover, Plaintiff's verified Complaint alleged that on September 29, 2015, he “composed another letter to C.O.R.C.’s I.G.P. Supervisor Karen Bellamy informing her of all grievances he was awaiting decisions on ... as he hadn't yet received receipt of appeal for this grievance.” (Dkt. No. 1 at 6.) Generally, conclusory allegations that an inmate appealed the superintendent's grievance denial to CORC are insufficient to withstand a motion for summary judgment. See Gibbs v. Gadway, 19-CV-0281, 2019 WL 5191506, at *3 (N.D.N.Y. Oct. 15, 2019) (Stewart, M.J.) (recommending dismissal based on the plaintiff's failure to exhaust his administrative remedies where the plaintiff made “a purely conclusory allegation that he appealed the grievance denial to CORC.”). However, the case law implies that where a plaintiff sets forth the date that he or she appealed the grievance to CORC, that may be enough to survive a motion for summary judgment. C.f. Gibbs v. Gadway, 19-CV-0281, 2019 WL 5191506, at *3 (N.D.N.Y. Oct. 15, 2019) (Stewart, M.J.) (recommending dismissal of the plaintiff's claims for failure to exhaust his administrative remedies where the plaintiff “has not provided a copy of the grievance appeal or even asserted what date he filed the appeal.”); Gough v. Morris, 16-CV-1107, 2018 WL 7199494, at *3 (N.D.N.Y. Dec. 14, 2018) (Stewart, M.J.) (recommending dismissal based on the plaintiff's failure to exhaust his administrative remedies where he testified that he appealed the superintendent's response to CORC but there was no evidence in the record that (a) the grievance or the superintendent's response were appealed to CORC and, (b) despite not receiving a response from CORC, the Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 207 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 plaintiff testified that he did not write to CORC to follow- up); Campbell v. Prue, 16-CV-0004, 2018 WL 4635708, at *5 (N.D.N.Y. July 3, 2018) (Hummel, M.J.) (“Although [the plaintiff] alleges that he filed [a] grievance ..., plaintiff does not state when he filed such grievance.... Further, plaintiff has not provided a copy of the alleged grievance or the Marcy IGRC's denial of that grievance.”); Toliver v. Stefinik, 12-CV-0077, 2016 WL 3349316, at *6 (N.D.N.Y. June 15, 2016) (D'Agostino, J.) (“vague and conclusory allegations ... [regarding] grievances ... do not, in light of the documentation Defendants have provided about Plaintiff's grievance history, create a factual dispute material to the issue of whether Plaintiff exhausted his administrative remedies.”); Smith v. Kelly, 985 F. Supp. 2d 275, 289 (N.D.N.Y. 2013) (Suddaby, J.) (granting the defendants’ motion for summary judgment on the issue of exhaustion where the plaintiff failed to “identify the name of the ‘IGRC's supervisor’ who purportedly told him that a new prisoner does not file a grievance at Auburn C.F. if it pertains to the prisoner's previous facility, nor does he specify the date, means or location of this purported communication.”). Mindful that a court should not resolve credibility issues when deciding a motion for summary judgment, and that Defendants bear the ultimate burden of proving that Plaintiff did not exhaust his administrative remedies, I conclude that there appears to be a material issue of fact regarding whether Plaintiff appealed grievances AUB-67199-15 and AUB-67567-15. 17 As a result, I recommend that Defendants’ motion be denied on this basis. C. Whether Plaintiff's First Amendment Retaliation Claims Should Nevertheless be Dismissed *12 A cognizable claim of retaliation pursuant to 42 U.S.C. § 1983 lies when prison officials take an adverse action against an inmate that is motivated by the inmate's exercise of a constitutional right, including the free speech provisions of the First Amendment. See Friedl v. City of N.Y., 210 F.3d 79, 85 (2d Cir. 2000) (“In general, a section 1983 claim will lie where the government takes negative action against an individual because of his exercise of rights guaranteed by the Constitution or federal laws.”). As the Second Circuit has repeatedly cautioned, however, because such claims are easily incanted and inmates often attribute adverse action, including the issuance of misbehavior reports, to retaliatory animus, courts must approach such claims “with skepticism and particular care.” Dawes v. Walker, 239 F.3d 489, 491 (2d Cir. 2001), overruled on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); accord, Davis v. Goord, 320 F.3d 346, 352 (2d Cir. 2003). To state a prima facie claim pursuant to 42 U.S.C. § 1983 for retaliatory conduct, a plaintiff must advance non-conclusory allegations establishing that (1) the conduct at issue was protected, (2) the defendants took adverse action against the plaintiff, and (3) there was a causal connection between the protected activity and the adverse action–in other words, that the protected conduct was a “substantial or motivating factor” in the prison officials’ decision to take action against the plaintiff. Mount Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Dillon v. Morano, 497 F.3d 247, 251 (2d Cir. 2007); Garrett v. Reynolds, No. 99-CV-2065, 2003 WL 22299359, at *4 (N.D.N.Y. Oct. 3, 2003) (Sharpe, M.J.). If the plaintiff carries this burden, then to avoid liability the defendants must show by a preponderance of the evidence that they would have taken action against the plaintiff even in the absence of the protected conduct. Mount Healthy, 429 U.S. at 287. If taken for both proper and improper reasons, state action may be upheld if the action would have been taken based on the proper reasons alone. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996) (citations omitted). Analysis of retaliation claims thus requires careful consideration of the protected activity in which the inmate plaintiff has engaged, the adverse action taken against him or her, and the evidence tending to link the two. When such claims, which are exceedingly case specific, are alleged in only conclusory fashion, and are not supported by evidence establishing the requisite nexus between any protected activity and the adverse action complained of, a defendant is entitled to the entry of summary judgment dismissing plaintiff's retaliation claims. Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). 1. Defendant Pflueger Plaintiff alleges that Defendant Pflueger retaliated against him during four separate incidents: (1) firing Plaintiff as a feed up porter and filing a false misbehavior report on June 17, 2015, (2) verbal harassment on (a) an unspecified dated in June or July 2015, (b) August 4, 2015, and (c) August 6, 2015, (3) causing Defendant Gould to file a Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 208 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 false administrative segregation recommendation, and (4) the destruction of Plaintiff's personal property. a. Incident on June 17, 2015 18 *13 Defendants argue that Plaintiff's retaliation claim with respect to the incidents on June 17, 2015, fails based on the third element, that there is no evidence in the record to support the contention that Plaintiff was retaliated against for his protected speech. 19 In considering whether there is a “causal connection between the protected speech and the adverse action, a court may consider a number of factors, including any statements made by the defendant concerning his motivation and the temporal proximity between the protected activity and the defendant's adverse action.” Roseboro v. Gillespie, 719 F. Supp. 2d 353, 366 (S.D.N.Y. 2011); see also Tuitt v. Chase, 11-CV-0776, 2013 WL 877439, at *7 (N.D.N.Y. Jan. 30, 2013) (Dancks, M.J.), report and recommendation adopted, 2013 WL 877617 (N.D.N.Y. Mar. 8, 2013) (factors relevant to a consideration of causal connection “include: (i) the temporal proximity between the protected activity and the alleged retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by the defendant concerning his or her motivation”). The Second Circuit has “held that temporal proximity between protected conduct and an adverse action constitutes circumstantial evidence of retaliation,” but has also “consistently required some further evidence of retaliatory animus before permitting a prisoner to proceed to trial on a retaliation claim.” Washington v. Afify, 681 F. App'x 43, 46 (2d Cir. 2017); see also Thomas v. Waugh, 13-CV-0321, 2015 WL 5750945, at *4 (N.D.N.Y. Sept. 30, 2015) (D'Agostino, J. adopting Report-Recommendation on de novo review) (citing Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001)) (“temporal proximity alone is insufficient to establish an inference of retaliation.”). *14 Here, in addition to temporal proximity connecting Plaintiff's grievance of May 10, 2015, to the incident on June 17, 2015, 20 Defendant Pflueger's alleged statements provide circumstantial evidence of causation. Plaintiff's verified Complaint alleged that on August 4, 2015, Defendant Pflueger said to another correction officer, “[t]his is also where we keep idiots like this guy who think they can snitch on officers and nothing's going to happen to them,” and “[h]ow'd that work out for you stupid? You want to help me explain to him how our grievance procedure works?” (Dkt. No. 1 at 24-25.) Moreover, the verified Complaint alleged that on August 6, 2015, Defendant Pflueger said, “[o]h, and just so you know, I didn't forget about your latest grievance either. You better say a prayer to your White Supremacist God that I'm not here on the day they bring you down to the draft room, because I'll be watching the change sheet. You're not gonna make it outta here in 1 piece.” (Dkt. No. 1 at 25.) These statements provide circumstantial evidence that Defendant Pflueger's actions on June 17, 2015, firing Plaintiff from his job as a feed up porter and filing a misbehavior report against him that ultimately resulted in his placement in keep-lock confinement for thirty days, were in retaliation for Plaintiff's grievance of May 10, 2015. See Cole v. N.Y.S. Dep't of Corr. and Cmty. Supervision, 14-CV-0539, 2016 WL 5394752, at *26 (N.D.N.Y. Aug. 25, 2016) (Peebles, M.J.) (finding an issue of fact as to retaliation where the defendant allegedly said (a) “Happy Anniversary” in reference to prior assaults and a lawsuit that resulted from those assaults, and (b) that the assault was “payback” for the plaintiff's grievances); Roland v. McMonagle, 12-CV-6331, 2015 WL 5918179, at *6 (S.D.N.Y. Oct. 9, 2015) (finding an issue of fact as to retaliation where there was evidence that the defendants were aware of the plaintiff's complaints and mocked him for filing grievances). 21 As a result, the burden shifts to Defendants to show by a preponderance of the evidence that they would have taken action against the plaintiff even in the absence of the protected conduct. Mount Healthy, 429 U.S. at 287. With respect to the “firing” of Plaintiff as a feed up porter, Defendants submitted a non-retaliatory reason—that Defendant Pflueger observed Plaintiff pass an unidentified object into the cell of another inmate. (Dkt. No. 28, Attach. 10 at ¶13.) However, Plaintiff testified that he did not pass any unidentified items into another inmate's cell. (Dkt. No. 28, Attach. 5 at 51-52.) As a result, I find that a material issue of fact remains for trial. However, with respect to the allegedly false misbehavior report, Plaintiff admitted some of the allegations contained in the misbehavior report. More specifically, Plaintiff admitted that he yelled profanities as he walked back to his cell and that while in his cell, he made derogatory statements about Defendant Pflueger loud enough to be heard by an inmate on a different floor. (Dkt. No. 28, Attach. 5 at 54-55.) This admission “suggests that ‘plaintiff committed the most Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 209 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 serious, if not all, of the prohibited conduct charged in the misbehavior report.’ ” Flynn v. Ward, 15-CV-1028, 2018 WL 3195095, at *12 (N.D.N.Y. June 7, 2018) (Hummel, M.J.) (quoting Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)). As a result, Defendants have established a non-retaliatory reason for the filing of the misbehavior report of June 17, 2015. Flynn, 2018 WL 3195095, at *12 (citing Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir. 1998) (concluding that plaintiff's admission of the underlying conduct established a “proper, non-retaliatory reason[ ] for filing the misbehavior report.”)); see also Hynes v. Squillace, 143 F.3d 653, 657 (2d Cir. 1998) (where plaintiff admitted to committing the most serious, if not all, of the prohibited conduct charged in the misbehavior report, “defendants met their burden of demonstrating proper, non-retaliatory reasons for filing the misbehavior report.”). *15 As a result, I recommend that Defendants’ motion for summary judgment be granted with respect to the allegedly false misbehavior report of June 17, 2015, and be denied with respect to the “firing” of Plaintiff as a feed up porter. b. Verbal Harassment Plaintiff alleges that sometime in June or July 2015, he was verbally harassed when Defendant Pflueger told another officer that he was going to “kick [P]laintiff's f****** a**.” (Dkt. No. 1 at 19.) In addition, Plaintiff alleges that on August 4, 2015, Defendant Pflueger said to another correction officer, “[t]his is also where we keep idiots like this guy who think they can snitch on officers and nothing's going to happen to them,” and “[h]ow'd that work out for you stupid? You want to help me explain to him how our grievance procedure works?” (Dkt. No. 1 at 24-25.) 22 Moreover, Plaintiff alleges that on August 6, 2015, Defendant Pflueger said, “[o]h, and just so you know, I didn't forget about your latest grievance either. You better say a prayer to your White Supremacist God that I'm not here on the day they bring you down to the draft room, because I'll be watching the change sheet. You're not gonna make it outta here in 1 piece.” (Dkt. No. 1 at 25.) In this Circuit, allegations of verbal harassment or threats are generally an insufficient basis for an inmate's § 1983 claim. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (“The claim that a prison guard called Purcell names also did not allege any appreciable injury and was properly dismissed”); Hayes v. Dahkle, 16-CV-1368, 2017 WL 9511178, at *7 (N.D.N.Y. Oct. 30, 2017) (Hummel, M.J.) (“[v]erbal harassment absent injury, is generally insufficient to rise to the level of a constitutional violation”); Tafari v. Paul, 06-CV-0603, 2009 WL 3260075, at *1 (W.D.N.Y. Oct. 8, 2009) (allegations of verbal harassment or abuse, “without a showing of an actual injury, are insufficient to support a § 1983 claim”) (citing Lewis v. Casey, 518 U.S. 343, 349-50 (1996)); Alexander v. Deming, 03-CV-0147, 2009 WL 1044561, at *5 (W.D.N.Y. Apr. 16, 2009) (“Courts within the Second Circuit have held that threats of disciplinary action and verbal harassment without injury are insufficient to state a constitutional violation”) (citing cases); Ramirez v. Holmes, 921 F. Supp. 204, 210 (S.D.N.Y. 1996) (“Allegations of threats or verbal harassment, without any injury or damage, do not state a claim under 42 U.S.C. § 1983.”). “Such statements are only sufficiently adverse for the purpose of a First Amendment retaliation claim if they ‘would deter a similarly situated individual of ordinary firmness of exercising constitutional rights.’ Verbal threats may constitute [an] adverse action if the threat is sufficiently specific. ‘The less direct and specific a threat, the less likely it will deter an inmate from exercising his First Amendment rights.’ ” Hayes, 2017 WL 9511178, at *7 (citations omitted). “The line between de minimis verbal harassment and retaliatory adverse action ... [hinges] on the specificity and seriousness of the words used.” Quezada v. Roy, 14-CV-4056, 2015 WL 5970355, at *21 (S.D.N.Y. Oct. 13, 2015). *16 “Mindful that inmates ‘may be required to tolerate more than average citizens[ ] before a retaliatory action taken against them is considered adverse’ ” Davis, 320 F.3d at 353, I conclude that Defendant Pflueger's alleged statements constitute vague threats that lack the specificity and seriousness “to deter an inmate from exercising his First Amendment rights” as no real threat exists. Id.; see Hayes, 2017 WL 9511178, at *8 (holding that where a correction officer allegedly verbally harassed the plaintiff on two occasions “warning him to not get comfortable in his housing unit because ‘you mess with one of us (C.O.’s) you got to deal with all of us’ and informing plaintiff that ‘[another correction officer] said hi!’ .... constitute vague threats that lack the specificity and seriousness ‘to deter an inmate from exercising his First Amendment rights’ as no real threat exists.”). Furthermore, with respect to Defendant Pflueger's alleged threats of physical injury, Plaintiff “does not ... allege that these threats were followed by any physical injury[,] and as a result, they are not actionable.” LaRocco v. N.Y.C. Dep't of Corr., 99-CV-9759, 2001 WL 1029044, at *5 (S.D.N.Y. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 210 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 Aug. 31, 2001). “Absent an appreciable injury following in close time to the threat of force [Defendant Pflueger's alleged] statement[ ], albeit inappropriate, lack the specificity and seriousness ‘to deter an inmate from exercising his First Amendment rights.’ ” Hayes, 2017 WL 9511178, at *8 (quoting Quezada v. Roy, 14-CV-4056, 2015 WL 5970355, at *21 (S.D.N.Y. Oct. 13, 2015)). As a result, to the extent the Complaint is construed as alleging that these incidents of verbal harassment were adverse actions—as opposed to evidence of a causal connection with respect to other adverse actions—I recommend dismissal of these claims. c. Causing Defendant Gould to File a False Administrative Segregation Recommendation Plaintiff has failed to adduce evidence in the record that Defendant Pflueger directed or caused Defendant Gould to file a false misbehavior report against Plaintiff. In fact, Defendant Gould affirmed that he “had no knowledge at the time [his] recommendation was made that Plaintiff had filed any grievances against Defendant [Pflueger].” (Dkt. No. 28, Attach. 6 at ¶ 11.) In addition, Plaintiff testified that (1) he did not know Defendant Gould before Defendant Gould made the recommendation that Plaintiff be placed in administrative segregation (Dkt. No. 28, Attach. 5 at 63), (2) he has no recollection of ever seeing Defendant Gould before the recommendation (id.), and (3) he is not aware of any conversations that Defendant Gould had with Defendant Pflueger, in which, they discussed that Defendant Gould should file an administrative segregation recommendation based on false information (id. at 65). The contention that Defendant Pflueger retaliated against Plaintiff by causing Defendant Gould to file a false administrative segregation recommendation is merely a conclusory allegation, which is insufficient to establish genuine issue of material fact for trial. In addition, this contention is sheer surmise on Plaintiff's part and unsupported by the record. (Dkt. No. 28, Attach. 5 at 64 (Plaintiff testified that the basis for his belief that Defendant Gould filed the recommendation on Defendant Pflueger's behalf is “[b]ecause there is no other reason to do it.”)); Cole, 2016 WL 5394752, at *27. As a result, I recommend dismissal of Plaintiff's retaliation claim against Defendant Pflueger with respect to this allegation. d. Destruction of Plaintiff's Personal Property Plaintiff failed to adduce any evidence that Defendant Pflueger destroyed (or confiscated or threw away) Plaintiff's personal property. The only evidence that Plaintiff presents in support of his contention, is that another inmate (housed three cells away) witnessed Defendant Pflueger in Plaintiff's cell. (Dkt. No. 1 at 23.) However, Plaintiff admitted that the other inmate “was inside his cell, so he couldn't see [Defendant Pflueger] inside [Plaintiff's] cell.” (Dkt. No. 28, Attach. 5 at 71.) Moreover, it is undisputed that other individuals were involved in the removal of Plaintiff's property from his cell and the transportation of that property to the special housing unit. (Id.; Dkt. No. 1 at 23.) Plaintiff is speculating that because the other inmate saw Defendant Pflueger in Plaintiff's cell, that Defendant Pflueger is responsible for Plaintiff's alleged missing personal property. However, this speculation is insufficient to create a material issue of fact for trial because no reasonable juror could conclude that Defendant Pflueger took an adverse action against Plaintiff by destroying his property. *17 As a result, I recommend dismissal of Plaintiff's retaliation claim against Defendant Pflueger with respect to this allegation. 2. Defendant Jones Plaintiff failed to show a genuine issue of material fact that his protected conduct was a substantial or motivating factor in Defendant Jones's endorsement of Defendant Pflueger's misbehavior report dated June 17, 2015. Graham v. Henderson, 89 F.3d 75, 81 (2d Cir. 1996). “[I]t is difficult to establish one defendant's retaliation for complaints against another defendant.” Hare v. Hayden, 09-CV-3135, 2011 WL 1453789, at *4 (S.D.N.Y. Apr. 14, 2011) (citing Wright v. Goord, 554 F.3d 255, 274 (2d Cir. 2009)). Here, Plaintiff did not file any grievances or complaints against Defendant Jones. The record lacks any evidence establishing why Defendant Jones would endorse a false misbehavior report against Plaintiff, on Defendant Pflueger's behalf, beyond Plaintiff's conclusory allegations. See Hill v. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 211 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 Chalanor, 128 F. App'x 187, 189 (2d Cir. 2005) (holding that the plaintiff's claim of a causal connection between defendant “Oliver's threats and the alleged actions of the other defendants in connection with Hill's medical care is wholly unsupported.”) Flynn v. Ward, 15-CV-1028, 2018 WL 3195095, at *12 (N.D.N.Y. June 7, 2018) (Hummel, M.J.) (recommending dismissal of retaliation claims where “[t]he record lacks any evidence establishing why Alsante would file a false misbehavior report against Flynn, on Wellenstein's behalf, beyond Flynn's conclusory allegations.”). Without more, the evidence does not present a genuine issue of material fact for a jury to resolve. Flynn, 2018 WL 3195095; see Wright, 554 F.3d at 274 (dismissing retaliation claim against a correction officer when the only alleged basis for retaliation was a complaint about an incident involving another correction officer); Alicea v. Maly, 12-CV-0203, 2015 WL 4326114, at *14-15 (N.D.N.Y. July 14, 2015) (D'Agostino, J.) (dismissing retaliation claim which alleged that Correction Officer Trinidad retaliated against the plaintiff for protected actions he took with respect to Correction Officer Freeman, where the plaintiff alleged a close personal friendship between Trinidad and Freeman and the record was “devoid of any specifics, but replete with conclusions”); Guillory v. Ellis, 11-CV-0600, 2014 WL 4365274, at *18 (N.D.N.Y. Aug. 28, 2014) (D'Agostino, J.) (“[I]t is difficult to establish one defendant's retaliation for complaints against another defendant.”); Roseboro v. Gillespie, 791 F. Supp. 2d 353, 369 (S.D.N.Y. 2011) (plaintiff failed to provide any basis to believe that a correction counselor would retaliate for a grievance that she was not personally named in); Ciaprai v. Goord, 02-CV-0915, 2005 WL 3531464, at *9 (N.D.N.Y. Dec. 22, 2005) (Sharpe, J.) (entering summary judgment on retaliation claim where the plaintiff cited only past grievances filed against correction officers other than the officer who disciplined the plaintiff). As a result, I recommend that Plaintiff's retaliation claim against Defendant Jones be dismissed. 3. Defendant Gould For the reasons set forth above in Parts III.C.1.c. and III.C.2. of this Report-Recommendation, I find that the record lacks evidence establishing a causal connection between Defendant Gould's recommendation that Plaintiff be placed in administrative segregation and Plaintiff's grievances against Defendant Pflueger, beyond Plaintiff's conclusory allegations. As a result, I recommend that Plaintiff's retaliation claim against Defendant Gould be dismissed. 4. Defendant Graham *18 The Second Circuit has previously indicated that supervisory defendants may be considered personally involved only if they “(1) directly participated in the alleged constitutional violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring.” Rasheen v. Adner, 356 F. Supp. 3d 222, 233 (N.D.N.Y. Jan. 28, 2019) (Hurd, D.J.) (citing Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). 23 The Supreme Court's decision in Iqbal has raised the question of whether all of the Colon factors continue to be viable. Keyes v. Annucci, 19-CV-0372, 2019 WL 4602240, at *17 (N.D.N.Y. Sept. 23, 2019) (Suddaby, C.J.) (citing Montanez v. City of Syracuse, 16-CV-0550, 2019 WL 315058, at *17 (N.D.N.Y. Jan. 23, 2019) (Sannes, J.)). Neither the Second Circuit nor the Supreme Court have made any findings on this issue. Keyes, 2019 WL 4602240, at *17. “Courts within the Second Circuit have taken various approaches post-Iqbal, from finding that only the first and third factors remain viable, to continuing to apply all factors in the absence of Second Circuit guidance, to considering the specific constitutional provision underlying the claim and applying all the Colon factors to claims that rely on a standard of unreasonable conduct or deliberate indifference but declining to apply all of them where the claim requires instead a showing of discriminatory intent.” Id. (see Montanez, 2019 WL 315058, at *17-18 (collecting cases) (adopting the specific constitutional provision approach and applying all the Colon factors to the plaintiff's Fourteenth Amendment claims because they did not require a showing of discriminatory intent); Carpenter v. Apple, 15-CV-1269, 2017 WL 3887908, at *9-10 (N.D.N.Y. Sept. 5, 2017) (Suddaby, C.J.) (noting that the majority of district courts have continued to apply all of the Colon factors “where the constitutional violation at issue does not require a showing of discriminatory intent” and adopting that majority approach); Marom v. City of New York, 15-CV-2017, 2016 WL 916424, at *15 (S.D.N.Y. 2016) (reasoning that Iqbal supported the specific constitutional Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 212 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 provision approach, and finding that all the Colon factors might be viable for false arrest and excessive force claims that were based on a reasonableness standard, but that the second, fourth, and fifth factors would not apply to a First Amendment retaliation claim because such claim contains an intent requirement)). The Court agrees with the specific constitutional provision approach discussed above because it is the most consistent with the guidance provided in Iqbal. See Iqbal, 556 U.S. at 676 (noting that, “[t]he factors [related to whether a government official's individual actions violated the Constitution] necessary to establish a Bivens violation will vary with the constitutional provision at issue,” discussing that the First and Fifth Amendments require that the official acted with a discriminatory purpose, and rejecting the argument that supervisors should be held liable on such claims merely because they knew of a subordinate's discriminatory purpose). The Court will therefore consider only the first and third Colon factors because Plaintiff's claims are pursuant to the First Amendment. *19 “[A] retaliation claim under the First amendment requires a showing of discriminatory intent, [and as a result,] supervisory liability will be imposed only if Plaintiff[ ]” establishes “that the officials either (a) directly participated in the alleged constitutional violation, or (b) created, or allowed to continue, a policy or custom under which the violation occurred.” Keyes, 2019 WL 4602240, at *19. “[W]hile personal involvement cannot be founded solely on supervision, liability can be found if the official proactively participated in reviewing the administrative appeals as opposed merely to rubber-stamping the results.” Molano v. Bezio, 10-CV-6481, 2012 WL 1252630, at *5 (W.D.N.Y. Apr. 13, 2012) (citing Collins v. Ferguson, 804 F. Supp. 2d 134, 140 (W.D.N.Y. 2011); Black v. Coughlin, 76 F.3d 72, 74-75 (2d Cir. 1996)). The record before the Court contains superintendent responses related to four grievances. (Dkt. No. 28, Attach. 11 at 1; Dkt. No. 28, Attach. 12 at 2; Dkt. No. 28, Attach. 14 at 1; Dkt. No. 28, Attach. 15 at 6; Dkt. No. 28, Attach. 18 at 1; Dkt. No. 28, Attach. 19 at 1.) However, the signature of the superintendent who executed the response, in each instance, is illegible. While Defendants argue that Defendant Graham merely rubber stamped the results of the investigation, “notably absent from the record is any affidavit or declaration from [Defendant Graham]” and absent “such evidence, a factual dispute exists as to whether [Defendant Graham] proactively participated in the decision-making process related to [Plaintiff's] grievances.” Flynn, 2018 WL 3195095, at *13. As such, I find that there is a triable issue of material fact for a jury to resolve with respect to Defendant Graham's personal involvement in Defendant Pflueger's alleged retaliatory conduct. Flynn, 2018 WL 3195095, at *13 (citing Celotex v. Catrett, 477 U.S. 317, 323 (1986)). Therefore, I recommend that Defendants’ motion with respect to Defendant Graham be denied. D. Doctrine of Qualified Immunity Finally, Defendants argue that, in any event, they are shielded from liability based on the doctrine of qualified immunity. Qualified immunity shields federal and state officials from suit “ ‘unless [1] the official violated a statutory or constitutional right that [2] was clearly established at the time of the challenged conduct.’ ” Terebesi v. Torreso, 764 F.3d 217, 230 (2d Cir. 2014) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). “A right is ‘clearly established’ if ‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’ ” Beckles v. City of New York, 492 F. App'x 181, 182 (2d Cir. 2012) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). Here, while Defendants summarize general caselaw, their argument in support of the qualified immunity defense is one paragraph long, entirely conclusory, and unsupported by any facts. Accordingly, it is recommended that Defendants’ motion on this ground, be denied. Thomas v. Delany, 17- CV-1023, 2019 WL 4247807, at *19 (N.D.N.Y. Aug. 13, 2019) (Hummel, M.J.) (citing Roberts v. Hobbs, 10-CV-0174, 2010 WL 5888777, at *6 (E.D. Ark. Nov. 8, 2010) (summarily denying dispositive motion containing unsupported and conclusory qualified immunity arguments that fail to address the particular facts or cite any relevant cases)). ACCORDINGLY, it is RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No. 28) be DENIED with respect to Plaintiff's retaliation claims against (1) Defendant Pflueger for firing Plaintiff as a feed up porter, and (2) Defendant Graham as superintendent and GRANTED with respect to Plaintiff's retaliation claims against (1) Defendants Jones, (2) Defendant Gould, and (3) Defendant Pflueger for allegedly (a) filing Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 213 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 a false misbehavior report against Plaintiff on June 17, 2015, (b) verbally harassing Plaintiff, (c) causing Defendant Gould to file an improper recommendation of administrative segregation, and (d) destroying Plaintiff's property. *20 Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) 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 DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72. It is hereby respectfully ORDERED that the Clerk of the Court shall file a copy of this Report-Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules. 24 All Citations Not Reported in Fed. Supp., 2019 WL 8015209 Footnotes 1 The Court notes that Defendants sometimes refer to Defendant Pflueger as Defendant “Plfueger” or “Pfleuger.” (See Dkt. No. 28, Attach. 1; Dkt. No. 28, Attach. 3; Dkt. No. 28, Attach. 10.) However, for the sake of consistency, the Court will refer to him as Defendant Pflueger, as reflected on the docket. (See generally docket sheet.) 2 The Court notes that the citation provided by Defendants for this fact does not support the fact asserted. See New York State Dep't of Corr. And Comty. Servs., http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/ WINQ130 (last visited November 25, 2019). However, the Court deems the fact admitted because Plaintiff failed to deny it. Estate of D.B. by Briggs v. Thousand Islands Cent. Sch. Dist., 327 F. Supp. 3d 477, 485 n.2 & n.13 (N.D.N.Y. 2018) (Suddaby, C.J.) (“where a non-movant neither admits nor disputes a fact, the response is deemed an admission”); Costello v. N.Y. State Nurses Ass'n, 783 F. Supp. 2d 656, 661 n.5 (S.D.N.Y. 2011) (disregarding the plaintiff's responses to the defendant's statement of material facts not in dispute where the plaintiff's response paragraphs did not specifically dispute the defendant's statements or consisted of “conclusory allegations, speculation, or conjecture.”); In re Horowitz, 14-CV-36884, 2016 WL 1039581, at *1 n.2 (Bankr. S.D.N.Y. Mar. 15, 2016) (stating that, “a response contending to neither admit or deny an allegation does not create a genuine issue of fact”); accord, Piacente v. Int'l Union of Bricklayers & Allied Craftworkers, 11-CV-1458, 2015 WL 5730095, at *2 n.3 (S.D.N.Y. Sept. 30, 2015). 3 Defendants acknowledge that there are “certain caveats” to the PLRA's exhaustion requirement, however Defendants argue that those caveats are inapplicable here. 4 As a result, “[c]onclusory allegations, conjecture and speculation ... are insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted). As the Supreme Court has explained, “[The non-movant] must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). 5 Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases). 6 Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases). 7 Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 214 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 8 Among other things, Local Rule 7.1(a)(3) requires that the non-movant file a response to the movant's Statement of Material Facts, which admits or denies each of the movant's factual assertions in matching numbered paragraphs, and supports any denials with a specific citation to the record where the factual issue arises. N.D.N.Y. L. R. 7.1(a)(3). 9 Cusamano, 604 F. Supp. 2d at 427 & n.6 (citing cases); see also Prestopnik v. Whelan, 253 F. Supp. 2d 369, 371 (N.D.N.Y. 2003) (Hurd, J.) (holding that the Court is not required to “perform an independent review of the record to find proof of a factual dispute.”). 10 See, e.g., Beers v. GMC, 97-CV-0482, 1999 U.S. Dist. LEXIS 12285, at *27-31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3]); Devito v. Smithkline Beecham Corp., 02-CV-0745, 2004 WL 3691343, at *3 (N.D.N.Y. Nov. 29, 2004) (McCurn, J.) (deeming plaintiff's failure to respond to “aspect” of defendant's motion to exclude expert testimony as “a concession by plaintiff that the court should exclude [the expert's] testimony” on that ground). 11 See also Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *1 & n.1 (N.D.N.Y. Mar. 31, 2010) (citation omitted) (Suddaby, J.). 12 The Court uses the term “a certain number of days” rather than a particular time period because (1) since the three-step process was instituted, the time periods imposed by the process have changed, and (2) the time periods governing any particular grievance depend on the regulations and directives pending during the time in question. 13 See Murray, 2010 WL 1235591, at *2 & n.3 (citing Groves v. Knight, 05-CV-0183, Decision and Order at 3 (N.D.N.Y. filed Aug. 4, 2009), an appeal from which was subsequently dismissed as frivolous, see Groves v. Knight, No. 09-3641, Mandate (2d Cir. Filed Jan. 15, 2010)). 14 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within the time limits may be appealed to the next step.”); see also Murray, 2010 WL 1235591, at *2 & n.4 (collecting cases). 15 The Court notes that the Supreme Court recently eliminated this third inquiry, and courts are no longer permitted to excuse a prisoner's failure to exhaust his administrative remedies because of “special circumstances.” Ross v. Blake, 136 S. Ct. 1850, 1856-57 (2016). 16 “Although ‘a plaintiff's pro se status does not allow him to rely on conclusory allegations or unsubstantiated speculation to overcome a motion for summary judgment,’ Almonte v. Florio, 02-CV-6722, 2004 WL 60306, at *3 n.10 (S.D.N.Y. Jan. 13, 2004) (citation and italics omitted), where a plaintiff ‘verifie[s] his complaint by attesting under penalty of perjury that the statements in the complaint [are] true and to the best of his knowledge,’ the ‘verified complaint is to be treated as an affidavit for summary judgment purposes,’ Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).” King v. Puershner, 17-CV-1373, 2019 WL 4519692, at *1 n.1 (S.D.N.Y. Sept. 19, 2019). 17 The Court notes that this conclusion is based on the special solicitude afforded to Plaintiff as a pro se litigant. Further, the Court notes that the evidence in the record to support the exhaustion of Plaintiff's administrative remedies is sparse. See c.f. Richardson v. Eberth, 14-CV-6138, 2016 WL 1271078, at *2-3 (W.D.N.Y. Mar. 29, 2016) (dismissing based on failure to exhaust administrative remedies where the plaintiff attached a copy of his original grievance which did not “bear any indicia that it was received or provided to any individual at the jail for transmission to the CORC” and his affidavit submitted in opposition failed to provide any specific details to support his allegation that he appealed his grievance to CORC (e.g. it did not state what specific person he gave it to in the prison, on what date he gave the appeal to anyone at the prison, or any other pertinent Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 215 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 18 or specific information to support his allegations)); Toliver v. Stefinik, 12-CV-0077, 2016 WL 3349316, at *6 (June 15, 2016) (D'Agostino, J.) (dismissing for failure to exhaust administrative remedies where the plaintiff submitted a copy of a formal grievance dated March 9, 2011, that was not reflected in the defendants’ records but where the plaintiff alleged that he “circulated” the grievance to the defendants and it was unclear whether the grievance was ever submitted to IGRC). 18 Defendants argue that Defendant Pflueger, as a correction officer, would not have had authority to fire Plaintiff as a feed up porter. (Dkt. No. 28, Attach. 3 at 17-18; Dkt. No. 28, Attach. 10 at ¶11.) However, there is evidence in the record that disputes this assertion and creates an issue of fact for trial. (Dkt. No. 28, Attach. 5 at 49.) 19 It is undisputed that Plaintiff engaged in constitutionally protected speech by the filing of grievances. (Dkt. No. 1 at 5-7; Dkt. No. 28, Attach. 11; Dkt. No. 28, Attach. 12; Dkt. No. 28, Attach. 14; Dkt. No. 28, Attach. 15; Dkt. No. 28, Attach. 18; Dkt. No. 28, Attach. 19.) See also Flood v. Cappelli, 18-CV-3897, 2019 WL 3778736, at *7 (S.D.N.Y. Aug. 2, 2019) (collecting cases) (holding that the filing of a grievance is protected speech). In addition, the alleged actions taken by Defendants constitute adverse actions because they would deter a prisoner of “ordinary firmness” from exercising his rights. See Johnson v. Schiff, 17-CV-8000, 2019 WL 4688542, at *24 (S.D.N.Y. Sept. 26, 2019) (collecting cases) (holding that the filing of a false misbehavior report against a prisoner is an adverse action); Hayes v. Dahkle, 16-CV-1368, 2017 WL 9511178, at *11 (N.D.N.Y. Oct. 30, 2017) (Hummel, M.J.) (holding that the “filing of a falsified misbehavior report that results in disciplinary segregated confinement constitutes adverse action.”); Casey v. Pallito, 12-CV-0284, 2016 WL 96157, at *7 (D. Vt. Jan. 7, 2016) (holding that terminating a prisoner's employment is an “adverse action.”); Chavis v. Struebel, 317 F. Supp. 2d 232, 238 (W.D.N.Y. 2004) (noting that “assigning the inmate [to] less desirable work assignments satisfies the adverse action requirement” for purposes of a prisoner's First Amendment retaliation claim). 20 “In assessing temporal proximity, the Second Circuit has established that no more than six months between the protected activity and the adverse action establishes the temporal proximity sufficient to support an inference of causal connection.” Hayes v. Dahkle, 16-CV-1368, 2017 WL 9511178, at *9 (N.D.N.Y. Oct. 30, 2017) (Hummel, M.J.) (citing King v. McIntyre, 11-CV-1457, 2015 WL 1781256, at *5 (N.D.N.Y. Apr. 8, 2016)). Here Plaintiff was fired as a feed up porter and Defendant Pflueger filed an allegedly false misbehavior report on June 17, 2015, which is “well within the Second Circuit's six-month time frame for establishing a causal connection between [P]laintiff's filing of a grievance” on May 10, 2015. Hayes, 2017 WL 9511178, at *10. 21 While Defendant Pflueger denies making the statements on August 4, 2015, and August 6, 2015, (Dkt. No. 28, Attach. 10 at ¶¶ 25-25), “[t]he court, when faced with conflicting sworn statements, must leave such credibility determinations to a reasonable fact finder to determine.” Mack v. Wood, 17-CV-1146, 2019 WL 5197230, at *7 (N.D.N.Y. July 26, 2019) (Baxter, M.J.). 22 While this statement suggests retaliatory animus about Plaintiff's placement in administrative segregation, for the reasons set forth in Part III.C.1.c. infra, there is no evidence before the Court that Defendant Pflueger had any role in Plaintiff's administrative segregation placement (other than being the alleged target of Plaintiff's planned of attack). In addition, Plaintiff accepted the recommendation that he be placed in administrative segregation. (Dkt. No. 1 at 21-22.) 23 “In addition to satisfying one of these requirements, a plaintiff must also establish that the supervisor's actions were the proximate cause of the plaintiff's constitutional deprivation.” Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014). 24 The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 216 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2019) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 19 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 217 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2020 WL 871197 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Seth LOGAN, Plaintiff, v. Superintendent GRAHAM, Auburn Correctional Facility; C.O. Pflueger, Auburn Correctional Facility; Officer Scott Jones, Auburn Correctional Facility, formerly known as C.O. Smith; and C.O. M. Gould, Auburn Correctional Facility, Defendants. 9:18-CV-291 (DNH/ML) | Signed 02/21/2020 Attorneys and Law Firms SETH LOGAN, Plaintiff pro se, 177 Avery Avenue, Buffalo, NY 14216. HON. LETITIA JAMES, Attorney General for the State of New York, OF COUNSEL: AIMEE COWAN, ESQ., Ass't Attorney General, Attorney for Defendants, 300 South State Street, Suite 300, Syracuse, NY 13202. DECISION and ORDER DAVID N. HURD, United States District Judge *1 Pro se plaintiff Seth Logan brought this civil rights action pursuant to 42 U.S.C. § 1983. On November 26, 2019, the Honorable Miroslav Lovric, United States Magistrate Judge, advised by Report-Recommendation that defendants’ motion for summary judgment be granted in part and denied in part. Specifically, Magistrate Judge Lovric recommended that defendants’ motion for summary judgment be denied with respect to plaintiff's retaliation claims against (1) defendant Pflueger for firing plaintiff as a feed up porter, and (2) defendant Graham as Superintendent, and granted with respect to plaintiff's retaliation claims against (1) defendant Jones, (2) defendant Gould, and (3) defendant Pflueger for allegedly (a) filing a false misbehavior report against plaintiff on June 17, 2015, (b) verbally harassing plaintiff, (c) causing defendant Gould to file an improper recommendation of administrative segregation, and (d) destroying plaintiff's property. Defendants timely filed objections to the Report- Recommendation with respect to the retaliation claim against defendant Pflueger and the supervisory claims against defendant Graham. Based upon a de novo review of the portions of the Report- Recommendation to which defendants objected, the Report- Recommendation is accepted and adopted in all respects. See 28 U.S.C. § 636(b)(1). Therefore, it is ORDERED that 1. Defendants’ motion for summary judgment is GRANTED in part and DENIED in part; 2. The motion is GRANTED with respect to plaintiff's retaliation claims against (1) defendant Jones, (2) defendant Gould, and (3) defendant Pflueger for allegedly (a) filing a false misbehavior report against plaintiff on June 17, 2015, (b) verbally harassing plaintiff, (c) causing defendant Gould to file an improper recommendation of administrative segregation, and (d) destroying plaintiff's property and those claims are DISMISSED; 3. Defendants Jones and Gould are DISMISSED from this action; 4. The motion is DENIED with respect to plaintiff's retaliation claims against (1) defendant Pflueger for firing plaintiff as a feed up porter, and (2) defendant Graham as Superintendent (relative to defendant Pflueger's alleged retaliatory conduct of firing plaintiff as a feed up porter) and those claims shall proceed to trial; 5. Trial is tentatively scheduled for September 14, 2020 at 9:30 a.m. in Utica, New York. Pre-trial submissions are due on or before August 31, 2020; 6. The parties are reminded that they have the option of referring this case to Magistrate Judge Lovric pursuant to 28 U.S.C. § 636(c) and based on his familiarity with the case, but are free to withhold consent without adverse substantive consequences. The parties are directed to advise the Court on or before April 8, 2020 whether or not a consent to a jury trial before him will be executed; and 7. If plaintiff wishes to renew his motion for the appointment of pro bono trial counsel, he must do so within thirty (30) days of the date of this Decision and Order. If plaintiff makes such Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 218 of 300
Logan v. Graham, Not Reported in Fed. Supp. (2020) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 a motion, the Clerk is directed to mail him a long form IFP application. *2 IT IS SO ORDERED. All Citations Not Reported in Fed. Supp., 2020 WL 871197 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 219 of 300
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 447734 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Luke MATTHEWS; Carlos Gomez; Gentl Bonds; Robert Smith; and Kasiem Chaves, Plaintiffs, v. L. SWEENEY, Clinton Corr. Sergeant; Michael Guynup, Clinton Corr. Lieutenant; Corr. Emergency Response Team (“CERT”) Officer 44-3; CERT Officer 44-4; CERT Officer 44-5; and CERT Officer 44-29, Defendants. 9:17-CV-0503 (GTS/ML) | Signed February 10, 2025 Attorneys and Law Firms DAVID B. RANKIN, ESQ., JONATHAN C. MOORE, ESQ., MARC A. CANNAN, ESQ., BEDLOCK, LEVINE & HOFFMAN, Counsel for Plaintiffs, 99 Park Avenue, 26th Floor, New York, NY 10016. DAVID C. WHITE, ESQ., THOMAS A. CULLEN, ESQ., MARK G. MITCHELL, ESQ., HON. LETITIA A. JAMES, Attorney General for the State of New York, Counsel for Defendants, The Capitol, Albany, NY 12224. DECISION and ORDER GLENN T. SUDDABY, United States District Judge *1 The trial in this prisoner civil rights case, filed by the five above-captioned individuals (“Plaintiffs”) against the six above-captioned employees of the New York State Department of Corrections and Community Supervision (“Defendants”) pursuant to 42 U.S.C. § 1983, began with an evidentiary hearing before the undersigned on February 5, 2025, regarding the affirmative defense of Defendants that Plaintiffs Gomez, Smith and Bonds failed to exhaust their available administrative remedies, as required by the Prison Litigation Reform Act, before filing this case on June 6, 2016 (their “exhaustion defense”). At the hearing, documentary evidence was admitted, and testimony was taken of Defendants’ witnesses (particularly, Cory Proscia, Rachael Seguin, and Jonathan Nocera), as well as Plaintiffs’ witnesses (particularly, Plaintiff Gomez, Plaintiff Smith, and non-party Manuel Nunez), 1 each of whom was able to be cross-examined by opposing counsel. At the conclusion of the hearing, the undersigned indicated that a written decision and order would follow. This is that written decision and order. For the reasons stated below, the claims of Plaintiffs Gomez, Bonds, and Smith are dismissed because of their failure to exhaust their available administrative remedies before filing this action. I. RELEVANT BACKGROUND A. Plaintiffs’ Claims and Case's Relevant Procedural History Generally, the surviving claims in this case assert violations of the Eighth Amendment and Title VI of the Civil Rights Act of 1964 by Defendants during an investigation, at Clinton Correctional Facility (“Clinton C.F.”), in Dannemora, New York, into the escape of two inmates (David Sweat and Richard Matt) from Clinton C.F., in June of 2015, before those Plaintiff were transferred to Upstate Correctional Facility (“Upstate C.F.”) and Sullivan Correctional Facility (“Sullivan C.F.”). (See generally Dkt. No. 298 [Plfs.’ Third Am. Compl.].) Generally, his Decision and Order of March 18, 2022, Senior U.S. District Judge Thomas J. McAvoy 2 left to be determined, through an evidentiary hearing, Defendants’ exhaustion defense against the claims of Plaintiffs Gomez, Bonds, and Smith. (Dkt. No. 325, at 19.) 3 Not addressed at the evidentiary hearing are the following: (1) any exhaustion defense against the claims of Plaintiff Negron, which (although mentioned in Judge McAvoy's Decision and Order) were voluntarily discontinued on January 4, 2022 (Dkt. No. 310); (2) any exhaustion defense against the claims of Plaintiff Matthews, with regard to which Judge McAvoy denied Defendants’ motion for summary judgment (id. at 13-16, 19), and Defendants have since effectively abandoned their exhaustion defense against the claims of Matthews (Dkt. No. 364); 4 and (3) any exhaustion defense against the claims of Plaintiff Chaves, with regard to which Defendants never moved for summary judgment (see generally Dkt. No. 254, Attach. 1, at 14 [attaching page “11” of Defs. Memo. of Law, stating, “At this time, defendants do not assert a failure to exhaust argument with respect to Chaves’ sole surviving claim”]), and in any event Defendants have since effectively abandoned their exhaustion defense against the claims of Chaves (Dkt. No. 364). 5 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 220 of 300
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 Because this Decision and Order is intended primarily for the review of the parties, the Court will presume the reader's familiarity with further details regarding Plaintiffs’ claims and the relevant procedural history of this case. B. Parties’ Arguments 1. Defendants’ Arguments Generally, Defendants assert four arguments. First, Defendants argue, Plaintiff Gomez never filed grievances at either Clinton C.F. or Upstate C.F., regarding his current claims of mistreatment at Clinton C.F. on June 6, 2015, and June 16, 2015; and, although he filed two grievances at Sullivan C.F. on December 2, 2015, neither of those grievances regarded the claims asserted in this case. (Dkt. No. 254, Attach. 1, at 9-10 [attaching pages “6” and “7” of Defs.’ Memo. of Law].) In any event, Defendants argue, Plaintiff Gomez never filed a grievance appeal regarding the claims he asserts. (Id.) Second, Defendants argue, Plaintiff Bonds never filed grievances at either Clinton C.F. or Upstate C.F., regarding his current claims of mistreatment at Clinton C.F. on June 15, 2015; and, although, while at Sullivan C.F., he filed a grievance regarding his current claims, that grievance was denied by the Superintendent of Sullivan C.F., and Plaintiff Bonds never appealed that denial. (Id. at 10-11 [attaching pages “7” and “8” of Defs.’ Memo. of Law].) 6 Third, Defendants argue, Plaintiff Smith never filed grievances at Clinton C.F., Upstate C.F., or Sullivan C.F., regarding his current claims of mistreatment at Clinton C.F. on June 15, 2016, nor did he appeal the denial of any such grievances. (Id. at 12-13 [attaching pages “9” and “10” of Defs.’ Memo. of Law].) Fourth, Defendants argue, any argument that these Plaintiffs were not required to exhaust because the administrative procedure offered to them operated as a “simple dead end” is conclusory in nature. (Dkt. No. 286, at 7 [attaching page “5” of Defs.’ Reply Memo. of Law].) 2. Plaintiffs’ Arguments Generally, Plaintiffs assert three arguments. First, Plaintiffs argue, Plaintiffs Gomez, Bonds and Smith should be excused from having to exhaust their available administrative remedies because the administrative procedure offered by the New York State Department of Corrections and Community Supervision operated as a “simple dead end” for plaintiffs making the types of complaints in question (due to officers being consistently unwilling to provide any relief to aggrieved inmates). (Dkt. No. 281, at 11-19 [attaching pages “7” through “15” of Plfs.’ Opp'n Memo. of Law]; Dkt. No. 372, at 2 [Plfs.’ Ltr. Motion].) More specifically, Plaintiffs argue that Office of Special Investigations (“OSI”) Investigator John Nocera was tasked with conducting “the majority” of the OSI's investigation of inmate grievances and allegations of assault that resulted from the June 2015 escape investigation (including interviews of several corrections officers and/ or CERT officers), but that Nocera either did not conduct those investigations or misrepresented evidence that was provided to him during them. (Id.) As a result, Plaintiffs argue, OSI recommended that all inmate allegations of assault against the CERT Officers and other corrections officers be unsubstantiated. (Id.) II. GOVERNING LEGAL STANDARD *3 The Prison Litigation Reform Act of 1995 (“PLRA”) requires that prisoners who bring suit in federal court must first exhaust their available administrative remedies: “No action shall be brought with respect to prison conditions under § 1983 ... 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. The PLRA was enacted “to reduce the quantity and improve the quality of prisoner suits” by “afford[ing] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case.” Porter v. Nussle, 534 U.S. 516, 524-25 (2002). In this regard, exhaustion serves two main purposes. First, it protects “administrative agency authority” by giving the agency “an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court, and it discourages disregard of the agency's procedures.” Woodford v. Ngo, 548 U.S. 81, 89 (2006). Second, exhaustion promotes efficiency because (a) “[c]laims generally can be resolved much more quickly and economically in proceedings before an agency than in litigation in federal court,” and (b) “even where a controversy survives administrative review, exhaustion of the administrative procedure may produce a useful record for subsequent judicial consideration.” Woodford, 548 U.S. at 89. “[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 221 of 300
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter, 534 U.S. at 532. In accordance with the PLRA, the New York State Department of Corrections and Community Supervision (“DOCCS”) has made available a well-established inmate grievance program. 7 N.Y.C.R.R. § 701.7. Generally, the DOCCS Inmate Grievance Program (“IGP”) involves the following three-step procedure for the filing of grievances. 7 N.Y.C.R.R. §§ 701.5, 701.6(g), 701.7. 7 First, an inmate must file a complaint with the facility's IGP clerk within a certain number of days of the alleged occurrence. 8 If a grievance complaint form is not readily available, a complaint may be submitted on plain paper. A representative of the facility's inmate grievance resolution committee (“IGRC”) has a certain number of days from receipt of the grievance to informally resolve the issue. If there is no such informal resolution, then the full IGRC conducts a hearing within a certain number of days of receipt of the grievance, and issues a written decision within a certain number of days of the conclusion of the hearing. Second, a grievant may appeal the IGRC decision to the facility's superintendent within a certain number of days of receipt of the IGRC's written decision. The superintendent is to issue a written decision within a certain number of days of receipt of the grievant's appeal. *4 Third, a grievant may appeal to the central office review committee (“CORC”) within a certain number of days of receipt of the superintendent's written decision. CORC is to render a written decision within a certain number of days of receipt of the appeal. Moreover, there is an expedited process for the review of complaints of inmate harassment or other misconduct by corrections officers or prison employees. 7 N.Y.C.R.R. § 701.8. In the event the inmate seeks expedited review, he or she may report the misconduct to the employee's supervisor. The inmate then files a grievance under the normal procedures outlined above, but all grievances alleging employee misconduct are given a grievance number, and sent immediately to the superintendent for review. Under the regulations, the superintendent or his designee shall determine immediately whether the allegations, if true, would state a “bona fide” case of harassment, and if so, shall initiate an investigation of the complaint, either “in-house,” by the Inspector General's Office, or by the New York State Police Bureau of Criminal Investigations. An appeal of the adverse decision of the superintendent may be taken to the CORC as in the regular grievance procedure. A similar “special” procedure is provided for claims of discrimination against an inmate. 7 N.Y.C.R.R. § 701.9. These procedural requirements contain several safeguards. For example, if an inmate could not file such a complaint within the required time period after the alleged occurrence, he or she can apply to the facility's IGP Supervisor for an exception to the time limit based on mitigating circumstances. If that application is denied, the inmate can file a complaint complaining that the application was wrongfully denied. 9 Moreover, any failure by the IGRC or the superintendent to timely respond to a grievance or first-level appeal, respectively, may be appealed to the next level, including CORC, in order to complete the grievance process. 10 The Court hastens to add, however, that, although an unprocessed grievance (i.e., a grievance that has not been assigned a grievance number) may technically be appealed, it need not be appealed in order for exhaustion to occur, because the regulatory scheme advising the inmate of that right has been found to be “too opaque.” See Williams v. Corr. Officer Priatno, 829 F.3d 118, 126 (2d Cir. 2016) (finding that, “even if Williams technically could have appealed his [unprocesseed] grievance, we conclude that the regulatory scheme providing for that appeal is ‘so opaque’ and ‘so confusing that ... no reasonable prisoner can use [it pursuant to Ross v. Blake, 136 S. Ct. 1850 (2016)]”). *5 Moreover, it is important to note that DOCCS has a separate and distinct administrative appeal process for inmate misbehavior hearings: A. For Tier III superintendent hearings, the appeal is to the Commissioner's designee, Donald Selsky, D.O.C.S. Director of Special Housing/Inmate Disciplinary Program, pursuant to 8 N.Y.C.R.R. § 254.8; B. For Tier II disciplinary hearings, the appeal is to the facility superintendent pursuant to 7 N.Y.C.R.R. § 253.8; and C. For Tier I violation hearings, the appeal is to the facility superintendent or a designee pursuant to 7 N.Y.C.R.R. § 252.6. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 222 of 300
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 “An individual decision or disposition of any current or subsequent program or procedure having a written appeal mechanism which extends review to outside the facility shall be considered non-grievable.” 7 N.Y.C.R.R. § 701.3(e)(1). Similarly, “an individual decision or disposition resulting from a disciplinary proceeding ... is not grievable.” 7 N.Y.C.R.R. § 701.3(e)(2). However, “[t]he policies, rules, and procedures of any program or procedure, including those above, are grievable.” 7 N.Y.C.R.R. § 701.3(e)(3); see also N.Y. Dep't Corr. Serv. Directive No. 4040 at III.E. Generally, if a prisoner has failed to properly follow each of the required three steps of the above-described grievance procedure prior to commencing litigation, he has failed to exhaust his administrative remedies, and his claims are subject to dismissal. Woodford, 548 U.S. at 93; Porter, 534 U.S. at 524; Ruggiero v. County of Orange, 467 F.3d 170, 175 (2d Cir. 2006). However, a plaintiff's failure to exhaust does not end the inquiry. This is because certain exceptions exist to the exhaustion requirement. In particularly, in 2004, in Hemphill v. State of New York, the Second Circuit held that a three-part inquiry is appropriate where a defendant contends that a prisoner has failed to exhaust his available administrative remedies, as required by the PLRA. Hemphill v. State of New York, 380 F.3d 680, 686, 691 (2d Cir. 2004), accord, Ruggiero, 467 F.3d at 175. First, “the court must ask whether [the] administrative remedies [not pursued by the prisoner] were in fact ‘available’ to the prisoner.” Hemphill, 380 F.3d at 686 (citation omitted). Second, if those remedies were available, “the court should ... inquire as to whether [some or all of] the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it ... or whether the defendants’ own actions inhibiting the [prisoner's] exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense.” Id. [citations omitted]. Third, if the remedies were available and some of the defendants did not forfeit, and were not estopped from raising, the non-exhaustion defense, “the Court should consider whether ‘special circumstances’ have been plausibly alleged that justify the prisoner's failure to comply with the administrative procedural requirements.” Id. [citations and internal quotations omitted]. However, in 2016, in Ross v. Blake, the Supreme Court abrogated Hemphill’s third prong and effectively enveloped its second prong within its first prong. Ross v. Blake, 136 S. Ct. 1850, 1857 (2016). More specifically, under Ross, any inquiry that previously would have been considered under the second or third prongs of Hemphill is now considered entirely within the context of whether administrative remedies were actually available to the aggrieved inmate. Ross, 136 S. Ct. at 1858. This is because, the Supreme Court explained, the PLRA “contains its own, textual exception to mandatory exhaustion.” Id. In particular, 42 U.S.C. § 1997e(a) provides that only those administrative remedies that “are available” must first be exhausted. Id. In the PLRA context, the Supreme Court determined that “availability” means that “an inmate is required to exhaust those, but only those, grievance procedures that are capable of use to obtain some relief for the action complained of.” Id. at 1859 (quotation marks omitted). *6 To guide courts in this new analysis, the Supreme Court has identified three kinds of circumstances in which an administrative remedy, “although officially on the books,” is not “available.” Ross, 136 S. Ct. at 1859. 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. Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Third, an administrative remedy is not “available” when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. Finally, two additional points bear mentioning regarding exhaustion hearings. First, the Second Circuit has ruled that a plaintiff in a lawsuit governed by PLRA is not entitled to a jury trial on disputed factual issues relating to his exhaustion of administrative remedies; rather, PLRA exhaustion is a matter of judicial administration. Messa v. Goord, 652 F.3d 305, 308-10 (2d Cir. 2011). Second, given that non- exhaustion is an affirmative defense, the defendant bears the burden of proving that a prisoner has failed to exhaust his available administrative remedies. 11 However, once a defendant has adduced reliable evidence that administrative remedies were available to the plaintiff and that the plaintiff nevertheless failed to exhaust those administrative remedies, the plaintiff must then “counter” the defendant's assertion by persuading the Court of either exhaustion or unavailability. 12 As a result, practically speaking, while the burden of proving this affirmative defense remains at all times on the defendant, the plaintiff may sometimes have to adduce evidence in order to defeat it. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 223 of 300
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 III. ANALYSIS After carefully considering the admissible record evidence adduced at the exhaustion hearing, the Court renders the following three factual findings: (1) Defendants have met their burden of proving that Plaintiffs Gomez, Smith and Bonds failed to exhaust their administrative remedies regarding the claims in question before filing this action; (2) Defendants have also met their burden of proving that administrative remedies were generally available to those Plaintiffs during the time in question (e.g., that the grievance procedure was working at Upstate C.F. and Sullivan C.F. during the time in question); and (3) Plaintiffs have not persuaded the Court that, at Upstate C.F. and Sullivan C.F. during the time in question, the grievance procedure operated as a “simple dead end” (with officers unable or consistently unwilling to provide any relief to aggrieved inmates). In support of the first factual finding, the Court relies on the following: (1) the fact that Plaintiffs’ counsel conceded at the exhaustion hearing that Plaintiffs Gomez, Smith and Bonds failed to exhaust their administrative remedies regarding the claims in question before filing this action; and (2) alternatively, the hearing exhibits admitted during the hearing testimony on that subject by Cory Proscia and Rachael Seguin, as well as those witnesses’ convincing demeanor and body language (including, but not limited to, their tone of voice, facial expressions, and eye contact). *7 In support of the second factual finding, the Court relies on the following: (1) the fact that Plaintiffs’ counsel conceded at the exhaustion hearing that Plaintiff Chaves, Plaintiff Matthews, and non-party Manuel Nunez were able to exhaust their available administrative remedies regarding claims of excessive force during their removal from Clinton C.F.; 13 and (2) alternatively, the hearing exhibits admitted during the hearing testimony on that subject by Cory Proscia and Rachael Seguin, as well as those witnesses’ convincing demeanor and body language (including, but not limited to, their tone of voice, facial expressions, and eye contact). In support of the third factual finding, the Court relies on the following: (1) the hearing exhibits admitted during and after 14 the hearing testimony of OSI Investigator Jonathan Nocera, as well as his convincing demeanor and body language (including, but not limited to, his tone of voice, facial expressions, and eye contact); (2) the unconvincing demeanor and body language of non-party Manuel Nunez, Plaintiff Gomez, 15 and Plaintiff Smith, 16 during their hearing testimony (including, but not limited to, their tone of voice, facial expressions, and eye contact or lack thereof); (3) the fact that, at the exhaustion hearing, Plaintiff Bonds chose to not even testify that he viewed the process as a “dead end” (much less subject himself to cross-examination on the issue); 17 and (4) alternatively, the fact that, on June 30, 2015, Plaintiffs Bonds chose to file a grievance at Sullivan C.F. regarding the claims at issue in this action on June 30, 2015, 18 which constitutes at least some evidence that Bonds did not view the process as a “dead end.” 19 *8 In addition, the Court makes the following three points. First, the Court rejects Plaintiffs’ post-hearing argument that “the purpose of the [exhaustion] hearing was not to assess whether Mr. Bonds failed to exhaust administrative remedies” but “to assess the weight of Plaintiffs’ evidence that DOCCS's summarily rejected inmate complaints of harassment during the 2015 escape investigation and the credibility of the DOCCS employee who conducted the majority of that investigation—John Nocera.” (Dkt. No. 378, at 1-2.) Contrary to Plaintiffs’ interpretation of Judge McAvoy's Decision and Order of March 18, 2022, his finding that “Plaintiffs have met their burden of demonstrating that DOCCS personnel rejected grievances of employee harassment arising from [the] 2015 escape investigation regardless of the merits of those grievances” was merely a ground to deny Defendants’ motion for summary judgment on the issue of exhaustion (the success of which turned on whether Plaintiffs failed to exhaust as a matter of law). (Dkt. No. 325, at 12.) 20 The question of fact that remained for the exhaustion hearing (the outcome of which turns on a mere preponderance of the evidence) was “whether Plaintiffs’ administrative remedies were available to them with respect to grievances against DOCCS personnel surrounding the escape investigation, or whether the IGP related to these grievances was a simple dead end.” (Id.) Simply stated, the rejection-of-grievances-regardless-of-the- merits fact identified by Plaintiffs was left to be proven by them at the exhaustion hearing, unless it was conceded by Defendants (which it was not). Furthermore, although the Court has certainly considered Plaintiffs’ hearing evidence as applying to all Plaintiffs (including Plaintiffs Bonds), the Court simply finds that evidence unconvincing for the reasons stated above and below. Second, to prove that a grievance process operated as a dead end, a plaintiff must show that the grievance process “could not lead to a change in the challenged prison policies.” Green Haven Prison Preparative Meeting of Religious Soc'y Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 224 of 300
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 of Friends v. N.Y. State Dep't of Corr. & Cmty. Supervision, 16 F.4th 67, 82 (2d Cir. 2021), cert. denied sub nom. Green Haven Preparative Meeting v. New York State Dep't of Corr. & Cmty. Supervision, 142 S. Ct. 2676 (2022). As the Second Circuit explained in Green Haven, Plaintiffs ... appear to make a futility argument, claiming that the grievance process was ‘a dead end’ such that they were not required to exhaust administrative remedies .... The bar for the availability of remedies, however, is low. To constitute an ‘available’ remedy, a process requires only ‘the possibility of some relief.’ Ross v. Blake, 578 U.S. 632, 643, 136 S. Ct. 1850, 195 L.Ed.2d 117 (2016) (emphasis added) (quotation marks omitted). Here, the Incarcerated Plaintiffs provide no evidence that a grievance asserting that a prisoner's religious liberty has been violated by a limitation on the number or timing of religious services or celebrations could not lead to a change in the challenged prison policies. Plaintiffs are thus unable to avoid the exhaustion requirement, and the Incarcerated Plaintiffs’ RLUIPA claims fail. Green Haven, 16 F.4th at 82 [emphasis in original]. A plaintiff has not met this burden simply by arguing that DOCCS never approved a grievance similar to the sort at issue in his case. See Wright v. Georgia Dep't of Corr., 820 F. App'x 841, 845 (11th Cir. 2020) (“Wright argued that the grievance process was an unavailable dead end because the wardens had never approved an inmate grievance involving medical treatment; however, he provided no factual support for this assertion. Accordingly, the district court did not err in concluding that the defendants satisfied their burden to show the failure to exhaust an available remedy and Wright failed to show that the remedy was effectively unavailable to him.”). Third, the fact that Mr. Nunez may have experienced a problem submitting his claim to Investigator Nocera – particularly when Nocera was trying to investigate the claim of Plaintiff Matthews 21 – hardly establishes that the problem asserted by Nunez was systematic. See Barksdale v. Annucci, 15-CV-0560, 2016 WL 4708235, at *3 (N.D.N.Y. Aug. 4, 2016) (Stewart, M.J.) (“As evidence of systematic delays, Plaintiff cites several grievances filed by other inmates, which he notes were not stamped as received until as long as a week and a half after they were dated .... [T]his evidence is insufficient to establish a pattern of systematic delays in the processing of grievances at Coxsackie.”), report- recommendation adopted, 2016 WL 4703740 (N.D.N.Y. Sept. 8, 2016) (Kahn, J.). This is particularly true given that, contrary to Plaintiff's argument that Investigator Nocera was tasked with conducting the “majority” of the OSI's investigation of inmate grievances and allegations of assault that resulted from the June 2015 escape investigation (Dkt. No. 372, at 2 [Plfs.’ Ltr. Motion]; Dkt. No. 281, at 6-7 [attaching pages “2” and “3” of Plfs.’ Opp'n Memo. of Law]), in fact, it appears (based on the available record evidence) that Nocera conducted fewer than half of those investigations. 22 In any event, regardless of whether Nocera conducted more than half of the investigations, the fact that other investigators existed further weakens Mr. Nunez's claim that Investigator Nocera's (purported) inaction rendered the entire procedure a “dead end.” *9 For each of these numerous alternative reasons, the claims of Plaintiffs Gomez, Smith and Bonds are dismissed. ACCORDINGLY, it is ORDERED that the claims of Plaintiffs Gomez, Smith and Bond in their Third Amended Complaint (Dkt. No. 298) are DISMISSED for failure to exhaust their available administrative remedies before filing suit. All Citations Slip Copy, 2025 WL 447734 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 225 of 300
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Footnotes 1 Plaintiff Bonds did not testify. His proffered reason for not appearing was “I was given 20 minutes to ready [sic]. First made aware of leaving on the day I had to leave. I was physically incapable of [sic].” (Dkt. No. 373 [Refusal/Waiver of Right to Be Physically Present at Court].) The Order to appear was served on Plaintiff's counsel on January 15, 2025. (Dkt. No. 368.) At the exhaustion hearing, his counsel stated that, after speaking with Plaintiff Bonds on February 4, 2025, counsel had learned as follows: (1) Plaintiff Bonds claims that, in his 15 years’ experience being incarcerated he “usually” gets a day's notice before he is transported to court; (2) here, he did not receive that one day's notice, but only twenty or thirty minutes’ notice; and (3) as a result, he was not “prepared” because he had not showered and was not “groomed,” and because he just suffered an injury in the gym so he had a “pain issue” as well. (Exhaust. Hrg. Tr.) 2 This case was reassigned from Judge McAvoy to the undersigned on February 13, 2024. (Dkt. No. 356.) 3 Although Judge McAvoy also stated in his Decision and Order that “Defendants may renew their summary judgment motion following the conclusion of this hearing” (Dkt. No. 325, at 19), such a renewed motion for summary judgment is unnecessary given the preponderance-of-the-evidence standard that governs the Court's determination in an exhaustion hearing, as stated in the undersigned's Text Order of February 2, 2024 (Dkt. No. 366). 4 In addition, the Court notes that, on January 15, 2025, the undersigned's Courtroom Deputy, Shelly Muller, received an email message from defense counsel confirming the fact that Defendants will not be pursuing their exhaustion defense against the claims of Plaintiffs Matthews or Chaves at the exhaustion hearing. 5 See, supra, note 4 of this Decision and Order. 6 Defendant argues that Plaintiff Bonds initially submitted this grievance to the Superintendent of Clinton C.F., who responded (through a representative) that it must be filed at Sullivan C.F. (Dkt. No. 254, Attach. 1, at 10-11 [attaching pages “7” and “8” of Defs.’ Memo. of Law].) 7 See also Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *1 & n.1 (N.D.N.Y. March 31, 2010) [citation omitted]. 8 The Court uses the term “a certain number of days” rather than a particular time period because (1) since the three-step process was instituted, the time periods imposed by the process have changed, and (2) the time periods governing any particular grievance depend on the regulations and directives pending during the time in question. 9 See Murray v. Palmer, 03-CV-1010, 2010 WL 1235591, at *2 & n.3 (N.D.N.Y. March 31, 2010) (citing Groves v. Knight, 05-CV-0183, Decision and Order at 3 [N.D.N.Y. filed Aug. 4, 2009], an appeal from which was subsequently dismissed as frivolous, see Groves v. Knight, No. 09-3641, Mandate [2d Cir. filed Jan. 15, 2010].) 10 See 7 N.Y.C.R.R. § 701.6(g) (“[M]atters not decided within the time limits may be appealed to the next step.”); see also Murray, 2010 WL 1235591, at *2 & n.4 [collecting cases]; cf. 7 N.Y.C.R.R. § 701.8(g) (“If the superintendent fails to respond within the required 25 calendar day time limit the grievant may appeal his/her grievance to CORC.”). 11 Id. at *4 [citation omitted]. 12 Id. at *4 & n.17 [citing cases]; see also Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (noting that special circumstances must be “plausibly alleged, ... justify[ing] the prisoner's failure to comply with administrative Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 226 of 300
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 procedural requirements”); Grant v. Kopp, 17-CV-1224, 2019 WL 368378, at *4 (N.D.N.Y. Jan. 3, 2019) (Peebles, M.J.) (“I conclude that although the burden of proof on this affirmative defense remains with the defendant at all times, the plaintiff can be required to produce evidence in order to defeat it.”) (citing cases), adopted, 2019 WL 367302 (N.D.N.Y. Jan. 30, 2019) (Sharpe, J.). 13 The Court notes that the fact that Plaintiff Chaves, Plaintiff Matthews, and non-party Nunez were able to exhaust their administrative remedies regarding their treatment during transfer from Clinton C.F. to Upstate C.F. is at least some evidence that that the grievance process was available during the time in question. See Moreau v. Ellsworth, No. 21-2997, 2023 WL 3477153, at *2 (2d Cir. May 16, 2023) (“[T]he record evidence demonstrates that Moreau and other inmates at Eastern were able to appeal from several unfavorable IGRC decisions during the same period. There is thus no basis to conclude that the inmate-grievance process was unavailable.”). 14 The Court notes that, after the hearing testimony of Nocera, Plaintiffs’ counsel submitted into evidence selected portions of the deposition testimony of several CERT Officers testifying that they do not recall having been interviewed by OSI or DOCCS regarding the allegations in question in 2015 (at Hrg. Exs. P-10, P-11, P-12, P-13, and P-14). Defendants’ counsel objected to the admission of these selected portions of the deposition testimony, and the Court reserved decision on this issue. After carefully considering the matter, the Court admits these exhibits into the record, because they do not change the outcome of the Court's decision. In addition to the fact that nearly six years passed between the interviews and the depositions, the Court is persuaded by the credible testimony of Nocera that the interviews occurred (as well as the corroborating documentary evidence). 15 For example, the Court does not find credible Plaintiff Gomez's hearing testimony that (1) he tried to file a grievance at Upstate C.F. regarding the claims at issue but was unable to do so because of a sign on his cell gate, and (2) he did not try to file such a grievance at Sullivan C.F. because he was threatened by unidentified officers (or anyone else) there. (Exhaust. Hrg. Tr.) The Court notes that it has carefully considered this testimony as potentially relevant to both the first circumstance of unavailability described in Ross, 136 S. Ct. at 1859-60 (regarding when the administrative procedure operates as a “simple dead end” because officers are “unable or consistently unwilling to provide any relief to aggrieved inmates”) and the third circumstance of unavailability described in Ross (regarding when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation”). 16 For example, the Court does not find credible Plaintiff Smith's hearing testimony that he did not file a grievance at Upstate C.F. regarding the claims at issue because of a sign on his cell gate and/or because CERT officers had instructed medical staff not to give him treatment. (Exhaust. Hrg. Tr.) Again, the Court has carefully considered this testimony as potentially relevant to both the first and third circumstances of unavailability described in Ross, 136 S. Ct. at 1859-60. See, supra, note 9 of this Decision and Order. 17 See Woodward v. Lytle, 16-CV-1174, 2019 WL 2527342, at *8 (N.D.N.Y. May 24, 2019) (Peebles, M.J.) (recommending dismissal for failure to exhaust, because “plaintiff who bore the burden of production to demonstrate unavailability of the grievance process failed to meet that burden in failing to present any evidence [at the exhaustion hearing], including his own testimony, that would indicate that Ms. Hartz, or any defendants, refused to file a grievance while he was housed in the SHU at Cape Vincent”), report- recommendation adopted, 2019 WL 2524756, at *1 (N.D.N.Y. June 19, 2019) (Mordue, J.). 18 (See Dkt. No. 254, Attach. 2, at 12 [Ex. C to Pinsonnault Decl., attaching copy of grievance from Bonds dated June 30, 2015]; Exhaust. Hrg. Ex. D-10.) 19 See Walker v. Ball, 16-CV-0437, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018) (Stewart, M.J.) (“While Plaintiff did not file any grievances regarding the alleged misconduct of Noonan and St. Johns ..., he did file Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 227 of 300
Matthews v. Sweeney, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 grievances regarding other issues .... This shows that Plaintiff did not view the filing of grievances as a dead end.”), report recommendation adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018) (Hurd, J.); Lapierre v. LaValley, 15-CV-1499, 2019 WL 4015689, at *5 (N.D.N.Y. Aug. 26, 2019) (Stewart, M.J.) (rejecting an asserted “dead end” exception and granting a motion for summary judgment because the plaintiff's prior filings “show[ ] that [he] did not view the filing of grievances as a dead end”) (citation omitted), report and recommendation adopted, 2019 WL 4686415 (N.D.N.Y. Sept. 26, 2019) (D'Agostino, J.), aff'd, 847 F. App'x 47 (2d Cir. 2021). The Court notes that the fact that Plaintiff Bonds lost this grievance is not evidence that it was a dead end. See McMillian v. Walters, 16-CV-0277, 2018 WL 879270, at *3 (N.D.N.Y. Feb. 14, 2018) (D'Agostino, J.) (“Plaintiff did not provide any evidence that would suggest that the administrative procedures act as a dead end. Although Plaintiff stated in his deposition that the grievance process ‘didn't do anything’ for him in the past ..., a record of administrative defeats for a single prisoner is not sufficient evidence to effectively indict the system.”). 20 To be clear, the “burden” referenced by Judge McAvoy regarded Plaintiffs’ modest burden in opposing Defendants’ motion for summary judgment, not their shifted burden of persuasion at a subsequent exhaustion hearing (during which the Court might evaluate the credibility of Plaintiffs’ testimony under cross- examination). See, supra, Part II of this Decision and Order (setting forth legal standard). 21 The Court notes that, at the exhaustion hearing, Mr. Nunez testified that, as Investigator Nocera was attempting to question him regarding the claim by Plaintiff Matthews on July 2 or 3, 2015, at Sing Sing C.F, Mr. Nunez attempted to remind Plaintiff about his own claim and did not receive a satisfactory response. (Exhaust. Hrg. Tr.) 22 More specifically, it appears that, of the 35 OSI Interview Statements in the record that indicate the name of the investigating officer, 16 of those statements identify that officer as Jonathan Nocera, seven identify him as James Lovelace, four identify him as Christopher Payant, three identify him as Scott Lustan, three identify him as Ryan Graziano, one identifies him as Felix Cotto, and one identifies him as Investigator Retrosi. (Dkt. No. 281, Attach. 9, at 3-8, 10, 12-17, 19, 20, 22-24, 26, 28, 30, 32, 33, 36, 38, 40, 42-45, 47, 49, 52, 55, 56 [Ex. 7 to Cannan Decl., attaching “OSI Interview Statements”].) End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 228 of 300
McGee v. McGready, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2018 WL 2045094 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Tony MCGEE, Plaintiff, v. Correction Officer MCGREADY, et al., Defendants. 16-CV-4187 (NSR) | Signed 04/30/2018 Attorneys and Law Firms Tony McGee, Brooklyn, NY, pro se. Colleen Kelly Faherty, State of New York Office of the Attorney General, New York, NY, for Defendants. OPINION & ORDER NELSON S. ROMÁN, United States District Judge *1 Plaintiff, Tony McGee (“Plaintiff”), an incarcerated pro se inmate at Sing Sing Correctional Facility, brings this action pursuant 42 U.S.C. § 1983 against Inmate Grievance Supervisor Anthony Black (“Black”), former Corrections Counselor Mary Jackson (“Jackson”), Sergeant Murray or Murphy (“Sgt. Murray”), Sergeant Poole (“Sgt. Poole”) and several other corrections officers. 1 Before this court is Defendant Black and Jackson’s motion to dismiss the amended complaint as against them based on failure to plead a plausible claim, failure to exhaust administrative remedies, and qualified immunity. For the foregoing reasons, the motion is GRANTED. FACTUAL BACKGROUND The following facts are taken from Plaintiff’s Amended Complaint and are deemed true for the purpose of this motion. Plaintiff alleges that on or about July 22, 2013, while in the mess hall he was assaulted by a fellow “gang related Hispanic inmate” who made a derogatory or offensive statement. In response to the statement, Plaintiff punched the inmate in the face resulting in an altercation. During the fight, Plaintiff was repeatedly punched about the face causing several lacerations. Plaintiff alleges that a “Black Correction Officer” 2 was present in the mess hall, observed the incident, and failed to prevent it and/or failed to intervene. On or about July 11, 2013, approximately eleven days prior to the altercation, Plaintiff spoke to Jackson and requested that he be placed in protective custody because he was threatened and being targeted by “gang-related Hispanic inmates.” Jackson purportedly prepared a request for “voluntary protective custody,” and informed Plaintiff he would be contacted sometime later. Later that day, Plaintiff was interviewed by Sgt. Murray concerning his request for protective custody. Plaintiff purportedly informed Sgt. Murray of the threats and being targeted. Plaintiff was once again informed he would be contacted sometime later. Plaintiff’s request was not granted. Plaintiff suggests had he been placed in protective custody, as requested, he would not have been assaulted and injured. Additionally, Plaintiff asserts that Defendant Black failed to process multiple sick- call grievances by failing to forward them to Central Office Review Committee (“CORC”). Plaintiff asserts claims under the Eight and Fourteenth Amendments. STANDARD OF REVIEW Rule 12(b)(6) On a 12(b)(6) motion, dismissal is proper unless the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) ). When there are well-pled factual allegations in the complaint, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 555. A motion to dismiss will be denied where the allegations “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. *2 Where a pro se Plaintiff is concerned, Courts must construe the pleadings in a particularly liberal fashion. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). The Court must therefore interpret the pleading “to raise the strongest arguments that [it] suggest[s].” Harris v. City of N.Y., 607 F.3d 18, 24 (2d Cir. 2010) (internal quotations and citation omitted). Nevertheless, a pro se plaintiff’s pleading must contain factual allegations that sufficiently “raise a right to Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 229 of 300
McGee v. McGready, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 relief above the speculative level” (Jackson v. N. Y.S. Dep't of Labor, 709 F. Supp. 2d 218, 224 (S.D.N.Y. 2010) ), and the Court’s duty to construe the complaint liberally is not “the equivalent of a duty to re-write it.” Geldzahler v. New York Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009). Exhaustion The Prison Litigation Reform Act (“PLRA”) precludes the filing of an action “with respect to prison conditions under [42 US.C. § 1983] ... by a prisoner confined in any jail, prison or other correction facility until such administrative remedies as are available are exhausted.” Williams v. Corr. Officer Priatno, 829 F.3d 118, 122 (2d Cir. 2016) (internal quotations omitted). Whether an inmate has exhausted all administrative remedies turns on a review of “the state prison procedures [available] and the prisoner’s grievance....” See Espinal v. Goord, 558 F.3d 119, 124 (2d Cir. 2009) citing Jones v. Bock, 549 U.S. 199, 218 (2007). Grievances at DOCCS are governed by the Inmate Grievance Program (“IGP”), which is based on a three-tiered system. Id. at 125. To adjudicate an inmate complaint: “(1) the prisoner files a grievance with the Inmate Grievance Resolution Committee (“IGRC”), (2) the prisoner may appeal an adverse decision by the IGRC to the superintendent of the facility, and (3) the prisoner then may appeal an adverse decision by the superintendent to the CORC. Id.; see also N.Y. Comp. Codes. R. & Regs., tit. 7, § 701.7 (1999). Notably, exhaustion is an affirmative defense, not a pleading requirement; thus, inmate plaintiffs need not “specially plead or demonstrate exhaustion in their complaints.” Jones, 549 U.S. at 216. Instead, Defendants must demonstrate lack of exhaustion. Colon v. N. Y.S. Dep't of Corr. & Cmty. Supervision, No. 15-CV-7432(NSR), 2017 WL 4157372, at *5 (S.D.N.Y. Sept. 15, 2017) citing Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009). Dismissal on a 12(b)(6) motion for failure to exhaust is permissible where “it is clear on the face of the complaint that the plaintiff did not satisfy the PLRA exhaustion requirement.” Williams, 829 F.3d at 122; see also Parris v. N.Y.S. Dep't Corr. Sews., 947 F. Supp. 2d 354, 261 (S.D.N.Y. 2013) (citing Johnson v. Westchester Cnty. Dep't of Con: Med. Dep't, No. 10-CV-6309, 2011 WL 2946168, at *2 (S.D.N.Y. July 19, 2011) for proposition that denial of motion was appropriate where complaint was ambiguous as to exhaustion). Further, on such a motion, where a court is confined to the four corners of the complaint, the documents attached thereto, and things of which it is entitled to take judicial notice (see, e.g., Kleinman v. Elan Corp., 706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011) ), a court is only permitted to consider outside documents related to exhaustion and submitted by defendants under limited circumstances. See, Smith v. Miller, No. 15- CV-9561 (NSR), 2017 WL 4838322, at *5 (S.D.N.Y. Oct. 23, 2017) (noting courts can take judicial notice of administrative records in Section 1983 cases in limited circumstances). Those include instances where “the complaint a) was the standard pro se form complaint that has a check-box regarding exhaustion, b) contained allegations clearly stating that the inmate had exhausted his administrative remedies, or c) clearly pointed to the fact that the inmate had, in fact, not exhausted.” Cohn, 2017 WL 4157372, at *5. Qualified Immunity *3 “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow, 457 U.S. at 818-19. It is within the Court’s discretion to determine the order in which the two prongs are analyzed. Pearson v. Callahan, 555 U.S. 223, 236 (2009). DISCUSSION Plaintiff asserts § 1983 claims under the Eighth Amendment against Defendants Black and Johnson. The essence of Plaintiff’s claim is a failure to protect. Plaintiff’s complaint suggest that Defendants' failure in processing or approving his request for voluntary confinement resulted in his subsequent assault. Or, construing the allegations liberally as the Court is required to do, but for Defendants' failure in placing him in voluntary protective custody, Plaintiff would not have been attacked and injured by a fellow inmate. Plaintiff’s 1983 complaint is that he was subjected to cruel and unusual punishment in violation of the Eighth Amendment, made applicable to the States by the Fourteenth. See Estelle v. Gamble, 429 U.S, 97, 102 (1976) citing Robinson v. California, 370 U.S. 660 (1962). “To prevail on an Eighth Amendment claim, an inmate must first show that his injury Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 230 of 300
McGee v. McGready, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 is objectively a ‘sufficiently serious’ one.” Brims v. Burdi, No. 03-CV-3159 (WHP), 2014 WL 1403281, at *2 (S.D.N.Y. June 23, 2004) quoting Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). Additionally, a plaintiff must “show that the defendant had knowledge of [the] prisoner’s problem and was deliberately indifferent to [the] prisoner’s plight.” Calhoun v. N. Y State Div. of Parole Officers, 999 F.2d 647, 654 (2d Cir. 1993) citing Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989). Deliberate indifference requires a showing that the conditions of incarceration posed a substantial risk of serious harm, and that prison officials possessed sufficient culpable intent. Hayes v. New York City Dep't Of Corr., 84 F.3d 614, 620 (2d Cir. 1996) citing Farmer v. Brennan, 511 U.S. 825, 834 (1994).The deliberate indifference requires a two prongs analysis: substantial risk of serious harm, objective prong; and sufficient culpable intent, subjective prong. Farmer, 511 U.S. at 834; Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Here, the objective prong is meet and not disputed. Subjectively, the prison official acts with the requisite sufficient culpable state of mind when he (or she) “has knowledge that an inmate faces a substantial risk of serious harm and he disregards that risk by failing to take reasonable measures to abate the harm.” Hayes, 84 F.3d at 620. Courts have denied deliberate indifference claims based upon surprise attacks. See Fernandez v. N.Y.C. Dep't of Corr., No. 08-CV-4294 (KMW), 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29, 2010); Zimmerman v. Macomber, No. 95-CV-0882(DAB), 2001 WL 946383 (S.D.N.Y. Aug. 21, 2001). Plaintiff alleges he provided advance notice to Jackson and Black of threats and a possible attack. Plaintiff’s allegation also suggest he identified the attacker(s), “gang related Hispanic inmates” at the facility. Plaintiff’s allegations suggest that Black and Jackson failed to take reasonable measures to abate the impending attack. Thus, Plaintiff has pled a plausible Eighth Amendment claim. *4 Plaintiff’s Eighth Amendment claim, however, fails for failure to exhaust his administrative remedies. This case involves the use of the pro se form complaint which contains the equivalent of a check-box exhaustion section. The amended complaint is clear as to whether Plaintiff alleges he grieved his claims. Plaintiff explicitly states he filed grievances concerning, inter alia, the “5 sick call request,” the “non-protection grievances” and the “foreseeable assault.” (See Amended Compl., Sect. IV., E (1).) Because the exhaustion issue is an integral part of the prisoner’s claims, the Court may refer to materials outside of the complaint on a 12(b)(6) motion in determining whether a plaintiff has exhausted. See Smart v. Goode, No. 04-CV-8850 (RWS), 2008 WL 591230, at *2 (S.D.N.Y. Mar. 3, 2008) (recognizing that the Court’s previous opinion “[did] not faithfully capture the subtlety of exhaustion doctrine in the Second Circuit” and that the Court should have addressed non-exhaustion as an affirmative defense). In support of their motion, Defendants submit a declaration from Karen Bellamy (“Bellamy”), the Director of the Inmate Grievance Program (“IGP”). Bellamy avers that she is the custodian of records maintained by the CORC, which is tasked with rendering administrative decisions on grievances filed by inmates. Based upon her review of the records, she found that Plaintiff made other complaints concerning meals, conditions of the facility, and “problems with security staff” on December 17, 2013. Plaintiff, however, did not file a grievance concerning the July 22nd incident nor his request for voluntary confinement. Though Plaintiff attempts to rebut Defendants' showing, mere conclusory statements in opposition is insufficient. Accordingly, Plaintiff’s Eighth Amendment claims must be dismissed. Plaintiff also asserts a claim based on Defendant Black’s failure to process his grievances, including his “5 sick call grievances.” It is well settled that in order to succeed on a § 1983 claim, Plaintiff must show that he has been deprived of a constitutional or other federal right. 42 U.S.C. § 1983. Inmate grievances procedures are undertaken voluntarily by the states and are not constitutionally required. Johnson v. New York City Dep't of Health, No. 06-CV-13699 (BSJ) (FM), 2008 WL 5378124, at *3 (S.D.N.Y. Dec. 22, 2008) (internal citation omitted). Accordingly, a failure to process a prisoner's grievance(s) does not in itself give rise to a constitutional claim. Swift v. Tweddell, 582 F. Supp. 2d 437, 445-46 (W.D.N.Y. 2008) (internal citations omitted). This claim must therefore be dismissed. CONCLUSION For the foregoing reasons, Defendants' motion is GRANTED in part and DENIED in part. Plaintiff’s Eighth Amendment and claims premised on the failure to process his grievances are dismissed. The Clerk of the Court is respectfully directed to terminate the motion at ECF No. 29. The parties are directed to confer, complete and submit to the Court a Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 231 of 300
McGee v. McGready, Not Reported in Fed. Supp. (2018) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 completed case management plan (blank form attached) within thirty (30) days of the date of this opinion. SO ORDERED. Attachment All Citations Not Reported in Fed. Supp., 2018 WL 2045094 Footnotes 1 The operative complaint is the Amended Complaint filed February 2, 2017. (ECF No. 22.) 2 In his complaint, Plaintiff appears to identify the “Black Correction Officer” as C.O. Javier Caban. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 232 of 300
Mena v. City of New York, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 3948100 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Jonathan MENA, Plaintiff, v. CITY OF NEW YORK, et al., Defendants. No. 13-cv-2430 (RJS) | Signed 07/19/2016 Attorneys and Law Firms Jonathan Mena, Stormville, NY, pro se. Omar Javed Siddiqi, Ryan Glenn Shaffer, New York City Law Department, New York, NY, for Defendants. OPINION AND ORDER RICHARD J. SULLIVAN, District Judge *1 Plaintiff Jonathan Mena, who is currently incarcerated and proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983 (“Section 1983”) against Correction Officer Benjamin Eason (“Defendant”), alleging violations of the Eighth Amendment. Now before the Court is Defendant's motion for summary judgment. For the reasons set forth below, the motion is granted. I. BACKGROUND A. Facts 1 On September 9, 2012, while incarcerated at the Otis Bantum Correctional Center (“OBCC”) on Rikers Island, Plaintiff was placed in an intake cell in the OBCC's receiving area, which he shared with two other individuals. (56.1 Stmt. ¶¶ 2–3.) Plaintiff alleges that the cell was extremely cold, vermin- infested, and too small to accommodate three men. (See Doc. No. 54-1 (“Compl.”) 4, 8.) Plaintiff further alleges that these conditions, coupled with the constant noise made by the two other inmates, prevented him from sleeping for the entire 60-hour period that he was held in the cell. (See id. at 4.) Consequently, he asked Defendant, who was on duty, to transfer him to a different cell. (56.1 Stmt. ¶¶ 7–8.) According to Plaintiff, Defendant responded that there was “nothing he could do” about the situation. (Id. ¶ 9; see also Doc. No. 54-2 (“Mena Dep.”) 59:5-8.) Plaintiff avers that he filed a grievance with the OBCC to complain about his experience in the cell. (See Compl. at 7.) The New York City Department of Correction (“DOC”) has an administrative grievance procedure, known as the Inmate Grievance and Request Program (“IGRP”), for inmates housed at facilities such as the OBCC. The IGRP, which was available and in effect at all times relevant to this lawsuit, requires that inmates first file a complaint with the Inmate Grievance Resolution Committee (“IGRC”) within ten days of the complained-of act. (56.1 Stmt. ¶¶ 11–12; see also Doc. No. 54-3 (“IGRP Directive”) § IV(D)(1).) The IGRC then attempts to resolve the grievance informally within five days, and if the grievance is not informally resolved, then the inmate may request a formal hearing before the IGRC. (56.1 Stmt. ¶ 12; see also IGRP Directive §§ IV(G)-(H).) An inmate may appeal the IGRC's decision to the commanding officer, or her designee, and subsequent appeals may be taken to the Central Office Review Committee (“CORC”). (56.1 Stmt. ¶ 13; see also IGRP Directive §§ IV(I)-(J).) The CORC's decision is the final and binding decision of the DOC; if an inmate disputes the decision of the CORC, he may independently appeal to the Board of Correction. (IGRP Directive at 47.) Finally, if an inmate does not receive a timely disposition at any point throughout the grievance process, he has the option of either granting an extension of time to the relevant decisionmaker (i.e., the IGRC, the commanding officer, or the CORC) or appealing and proceeding to the next level of review. (56.1 Stmt. ¶ 14; see also IGRP Directive §§ IV(D)(9)(b), (10).) *2 As Plaintiff himself acknowledges, after submitting the grievance and receiving no response, he neither granted the DOC an extension of time nor appealed. (See Compl. 7– 8; Opp'n 6.) In his Complaint, Plaintiff admits that he is “still waiting” for a disposition of his grievance, but does not indicate any steps he has taken to appeal any decision before the IGRC. (See Compl. 7.) In response to a question on the Southern District of New York Prison Complaint form asking a plaintiff to “set forth any additional information that is relevant to the exhaustion of your administrative remedies,” Plaintiff repeated a number of his substantive allegations against the OBCC staff, but did not state any information relevant to the grievance process. (Id. at 5.) And in his opposition brief in connection with this motion, Plaintiff again notes that he filed “several grievances about the issues Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 233 of 300
Mena v. City of New York, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 in question,” but he does not indicate any specific steps he took to appeal to the IGRC or to pursue any other avenue of appellate review within the IGRP. (Opp'n 6.) B. Procedural History On April 11, 2013, Plaintiff commenced this action by filing a complaint against the City of New York, Correction Officer Jaquon Pickwood (“Pickwood”), Correction Officer Sauda Abdul-Malik (“Abdul-Malik”), and Defendant (collectively, “Defendants”), pursuant to Section 1983, asserting violations of his constitutional rights under the Eighth and Fourteenth Amendments. (See Doc. No. 1.) On December 9, 2013, Defendants moved to dismiss the Complaint. (Doc. No. 18.) On September 17, 2014, the Court granted Defendants' motion to dismiss with respect to Plaintiff's claims against the City of New York, Pickwood, and Abdul-Malik, and Plaintiff's Fourteenth Amendment claims against Defendant for failure to state a claim upon which relief can be granted, but denied Defendants' motion to dismiss with respect to Plaintiff's Eighth Amendment claim against Officer Eason. (Doc. No. 29.) On September 11, 2015, following the completion of discovery, Defendant filed the instant motion for summary judgment, along with his brief and his 56.1 Statement, arguing that Plaintiff failed to exhaust administrative remedies, that his Eighth Amendment conditions of confinement claim failed on the merits, and that in any event, Defendant was entitled to qualified immunity. (Doc. Nos. 53–55, 57.) Defendant also filed a notice pursuant to Local Civil Rule 56.2 alerting Plaintiff of his obligation to submit a responsive statement and informing him of the consequences of not doing so. (Doc. No. 56.) In accordance with Local Rule 56.2, this notice included copies of Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1. (Id.) On October 14, 2015, Plaintiff filed a brief opposing summary judgment and submitted several exhibits (see Doc. No. 58), but he failed to submit a responsive 56.1 Statement. Defendant submitted his reply on October 22, 2015. (Doc. No. 59 (“Reply”).) II. LEGAL STANDARD Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is “no genuine dispute as to any material fact” where (1) the parties agree on all facts (that is, there are no disputed facts); (2) the parties disagree on some or all facts, but a reasonable fact-finder could never accept the nonmoving party's version of the facts (that is, there are no genuinely disputed facts), see Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); or (3) the parties disagree on some or all facts, but even on the nonmoving party's version of the facts, the moving party would win as a matter of law (that is, none of the factual disputes are material), see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a fact is genuinely disputed, the court “is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to show a genuine dispute, the nonmoving party must provide “hard evidence,” D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998), “from which a reasonable inference in [its] favor may be drawn,” Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation marks omitted). “Conclusory allegations, conjecture, and speculation,” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), as well as the existence of a mere “scintilla of evidence in support of the [nonmoving party's] position,” Anderson, 477 U.S. at 252, are insufficient to create a genuinely disputed fact. A moving party is “entitled to judgment as a matter of law” on an issue if (1) it bears the burden of proof on the issue and the undisputed facts meet that burden; or (2) the nonmoving party bears the burden of proof on the issue and the moving party “ ‘show[s]’– that is, point[s] out ... – that there is an absence of evidence [in the record] to support the nonmoving party's [position].” See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). *3 Typically, a “nonmoving party's failure to respond to a [Local Civil] Rule 56.1 statement permits the court to conclude that the facts asserted in the statement are uncontested and admissible.” T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009) (citing Gubitosi v. Kapica, 154 F.3d 30, 31 n.1 (2d Cir. 1998)). “This general rule applies equally” to cases involving a pro se nonmoving party who has been provided adequate notice of the consequences of failing to properly respond to a summary judgment motion. Pierre-Antoine v. City of N.Y., No. 04-cv-6987 (GEL), 2006 WL 1292076, at *3 (S.D.N.Y. May 9, 2006); see also Gilliam v. Trustees of Sheet Metal Workers' Nat'l Pension Fund, No. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 234 of 300
Mena v. City of New York, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 03-cv-7421 (KMK), 2005 WL 1026330, at *1 n.2 (S.D.N.Y. May 3, 2005). Even so, the Court “may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement,” Holtz, 258 F.3d at 73, and the Court is obligated to construe pro se litigants' submissions liberally, see McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004). Here, Plaintiff failed to submit a responsive Rule 56.1 statement, even though Defendant, pursuant to Local Civil Rule 56.2, sent Plaintiff notice of his obligations under Local Civil Rule 56.1 and Federal Rule of Civil Procedure 56 and sent copies of both rules. (Doc. No. 56). In light of Plaintiff's pro se status, the Court has exercised its discretion to independently review the record, which reveals no controverted facts. See Holtz, 258 F.3d at 73. In fact, as discussed below, Plaintiff's own submissions confirm the material facts contained in Defendant's Rule 56.1 Statement. III. DISCUSSION Defendant argues that summary judgment should be granted because Plaintiff has failed to comply with the administrative exhaustion requirement of the Prison Litigation Reform Act of 1995 (the “PLRA”). The Court agrees. Under the PLRA, inmates bringing claims with respect to prison conditions under Section 1983 must exhaust the administrative remedies that are available at that prison before proceeding in federal court. 42 U.S.C. § 1997e(a). The PLRA's exhaustion requirement is “mandatory,” thus “foreclosing judicial discretion.” Ross v. Blake, 136 S. Ct. 1850, 1857 (2016); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) (describing the “invigorated exhaustion provision” as “[a] centerpiece of the PLRA's effort to reduce the quantity of prisoner suits” (citations and quotation marks omitted)). Accordingly, “the law is well-settled that the failure to take an available administrative appeal, even when the initial grievance receives no response, constitutes a failure to exhaust available administrative remedies.” Garvin v. Rivera, No. 13-cv-7054 (RJS), 2015 WL 3999180, at *3 (S.D.N.Y. June 29, 2015); accord Johnson v. N.Y.C. Dep't of Corr., No. 13-cv-6799 (CM), 2014 WL 2800753, at *6 (S.D.N.Y. June 16, 2014) (“Assuming that [p]laintiff filed a timely grievance ... and received no response within five business days[,] ... [p]laintiff ... could have taken the next step and requested a hearing.”); Leacock v. N.Y.C. Health Hosp. Corp., No. 03-cv-5440 (RMB) (GWG), 2005 WL 483363, at *7 (S.D.N.Y. Mar. 1, 2005) (“[T]hat [plaintiff] allegedly did not receive a response to her grievance does not excuse her from failing to exhaust the appellate remedies available to her.”); Burns v. Moore, No. 99-cv-966 (LMM) (THK), 2002 WL 91607, at *8 (S.D.N.Y. Jan. 24, 2002) (“Thus, even if [p]laintiff received no response to his initial grievance, [p]laintiff could have sought the next level of review, in this case, to the prison superintendent.”). *4 At the OBCC, where Plaintiff was incarcerated, an inmate must exhaust several layers of review, even if the inmate does not receive a timely disposition at the initial stages. (56.1 Stmt. ¶ 12–14.) Here, as Plaintiff reveals in his own complaint and brief in opposition to the motion for summary judgment, he did not exhaust the OBCC administrative procedure. (Compl. 7–8; Opp'n 6.) Rather, he indicates that he filed a grievance but otherwise did not appeal or seek further review through the IGRP process. (Compl. 7–8 (noting that he is “still waiting” for disposition of his grievances and did not seek review at the next levels within IGRP); Opp'n 6 (noting that he filed “several grievances about the issues in question,” but omitting reference to any specific steps taken to appeal)). Accordingly, Plaintiff failed to satisfy the PLRA exhaustion requirement. The Court next considers whether there is any basis for excusing Plaintiff's failure to exhaust administrative remedies at the IGRP. Last month, the Supreme Court forcefully disapproved of judge-made exceptions to the PLRA's exhaustion requirement, stressing the mandatory language of the statute. See Ross, 136 S. Ct. at 1862 (“Courts may not engraft an unwritten ‘special circumstances’ exception onto the PLRA's exhaustion requirement.”) In doing so, the Supreme Court expressly rejected the Second Circuit's prior framework under Giano v. Goord, 380 F.3d 670 (2d Cir. 2004), and, by extension, Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004), which recognized a “special circumstances” exception to the PLRA's exhaustion requirement. See Williams v. Priatno, No. 14-4777, ___ F.3d. ____, ____, 2016 WL 3729383, at *4 (2d Cir. July 12, 2016) (“[T]o the extent that our special circumstances exception ... permits plaintiffs to file a lawsuit in federal court without first exhausting administrative remedies that were, in fact, available to them, those aspects of Giano and Hemphill are abrogated by Ross.”). Thus, post-Ross, the lone surviving exception to the PLRA's exhaustion requirement is that embedded in its text: that an inmate need only exhaust those administrative remedies that Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 235 of 300
Mena v. City of New York, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 are “available” to him. Ross, 136 S. Ct. at 1862; see also 43 U.S.C. § 1997e(a). An inmate's failure to exhaust may therefore be excused when his prison's grievance mechanisms are literally or constructively “unavailable.” Ross, 136 S. Ct. at 1858–59. The Supreme Court described three scenarios in which administrative procedures could be “officially on the books,” but “not capable of use to obtain relief,” and therefore unavailable. Id. While not exhaustive, these illustrations nonetheless guide the Court's inquiry. See Williams, 2016 WL 3729383, at *4 n.2. First, an administrative procedure is unavailable when “it operates as a simple dead end – with officers unable or consistently unwilling to provide any relief to inmates.” Ross, 136 S. Ct. at 1859. If prison administrators either lack the necessary authority to provide any relief or possess authority but consistently decline to exercise it, the administrative channels are not “available” within the meaning of the PLRA. Id.; see also Booth v. Churner, 523 U.S. 731, 736, 738 (2001) (“[T]he modifier ‘available’ requires the possibility of some relief.”). Second, an administrative procedure is unavailable where it is “so opaque that it becomes, practically speaking, incapable of use.” Id. To meet this high bar, the administrative remedy must be “essentially ‘unknowable.’ ” Id. Finally, “a grievance process is rendered unavailable when prison administrators thwart inmates from taking advantage of it through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860. Here, Plaintiff has not alleged – let alone shown – that the administrative procedures at the OBCC were unavailable to him. Although Plaintiff's initial grievance received no response, this alone is insufficient to show that the IGRP acted as a mere dead end. As stated earlier, “the law is well-settled” that an inmate's “failure to take an available administrative appeal, even when the initial grievance receives no response, constitutes a failure to exhaust available administrative remedies.” Garvin, 2015 WL 3999180, at *3 (collecting authorities). In short, the DOC's untimeliness in this case is not enough to demonstrate the unavailability of an administrative remedy. This is especially true in light of the IGRP's built-in appeal mechanism, whereby inmates may directly proceed to the next level of review in the event of the DOC's failure to respond to a grievance. (See IGRP Directive § IV(D)(9)(b), (10).) Furthermore, Plaintiff has not introduced any facts to indicate that prison officials at OBCC are “consistently unwilling to provide any relief to aggrieved inmates.” Ross, 136 S. Ct. at 1859. *5 Nor has Plaintiff pointed to any evidence that the IGRP was “so opaque that it [became], practically speaking, incapable of use” and therefore “essentially unknowable.” Ross, 136 S. Ct. at 1859. While the Second Circuit recently found that certain administrative grievance procedures at a different New York State facility met this standard, the Second Circuit's decision hinged on the “extraordinary circumstances” specific to the case before it, for which the applicable grievance regulations gave “no guidance whatsoever.” See Williams, 2016 WL 3729383, at *1, *5. Specifically, the plaintiff in Williams was housed in a special housing unit and segregated from the regular prison population; therefore, he gave his grievance complaint to a correction officer to file on his behalf. Williams, 2016 WL 3729383, at *2. However, the plaintiff in Williams alleged that the correction officer to whom he gave his complaint failed to file it, id., and because the Second Circuit concluded that the applicable grievance regulations gave “no guidance whatsoever to an inmate whose grievance was never filed,” id. at 5, it reversed the District Court's dismissal for failure to exhaust. Here, by contrast the IGRP expressly guides inmates in Plaintiff's position who have filed a grievance but have not received a timely response and directs them to either grant an extension of time to the relevant decisionmaker or to appeal to the next level of review. (See IGRP Directive §§ IV(D)(9)(b), (10).) In light of the IGRP's unambiguous directive, Plaintiff has clearly failed to show that the IGRP was “essentially unknowable.” See Ross, 136 S. Ct. at 1859. Finally, the Court turns to the third scenario contemplated by the Supreme Court, in which “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1859. Plaintiff has not demonstrated, or even suggested, that prison administrators obstructed or interfered with his access to administrative remedies. See, e.g., Winston v. Woodward, No. 05-cv-3385 (RJS), 2008 WL 2263191, at *10 (S.D.N.Y. May 30, 2008) (concluding that plaintiff's failure to exhaust administrative remedies was not excused in light of his “failure to put forth any corroborating evidence, either direct or circumstantial, to support his claims that he suffered retaliation in the form of threats, harassment and mail tampering”). Thus, this exception to the exhaustion requirement is also clearly inapplicable. Therefore, the Court concludes, as a matter of law, that Plaintiff has failed to exhaust administrative remedies available to him through the IGRP and has failed to offer any facts to prove that administrative remedies were not available Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 236 of 300
Mena v. City of New York, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 to him. Because Plaintiff's claims are barred for failure to comply with the administrative exhaustion requirement of the PLRA, Defendant's motion for summary judgment is granted. 2 IV. CONCLUSION For the reasons stated above, IT IS HEREBY ORDERED that Defendant's motion for summary judgment is GRANTED. Although Plaintiff has paid the filing fee in this action and has not applied to proceed in forma pauperis, the Court nevertheless certifies pursuant to 28 U.S.C. § 1915(a)(3) that, in the event Plaintiff seeks to appeal this Order in forma pauperis, any appeal would not be taken in good faith. The Clerk is respectfully directed to terminate the motion pending at docket number 53, to mail a copy of this order to Plaintiff, and to close this case. SO ORDERED. All Citations Not Reported in Fed. Supp., 2016 WL 3948100 Footnotes 1 The following facts are drawn from Defendant's unopposed Local Civil Rule 56.1 Statement. (Doc. No. 55 (“56.1 Statement” or “56.1 Stmt.”).) In deciding Defendant's motion for summary judgment, the Court has also considered Plaintiff's submission in opposition to summary judgment (Doc. No. 58 (“Opp'n”)), and has conducted an independent review of the record, notwithstanding Plaintiff's failure to submit a statement compliant with Local Civil Rule 56.1. See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d. Cir. 2001) (noting that district court “may in its discretion opt to conduct an assiduous review of the record even when” a party has failed to comply with Local Civil Rule 56.1 (citations and quotation marks omitted)). 2 Although Defendant has raised other grounds for summary judgment, including that Plaintiff has failed to establish an Eighth Amendment conditions of confinement claim, and that Defendant is entitled to qualified immunity, the Court finds it unnecessary to address these other arguments because of Plaintiff's failure to exhaust remedies. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 237 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 3514155 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Drahcir S. PARSON, Plaintiff, v. Judge Julie CAMPBELL, et al., Defendants. 5:25-CV-956 (AJB/MJK) | Signed December 8, 2025 Attorneys and Law Firms Drahcir S. Parson, Plaintiff, pro se. ORDER & REPORT-RECOMMENDATION Mitchell J. Katz, United States Magistrate Judge *1 To the Honorable Anthony J. Brindisi, U.S. District Judge: Parson commenced this action on July 21, 2025, by filing a Complaint (“Compl.”) and moving for leave to proceed in forma pauperis (“IFP”). (Dkts. 1, 2). The Clerk has sent the Complaint and IFP application to this Court for its review. (Dkts. 1, 6). TABLE OF CONTENTS I. BACKGROUND...–––– II. IFP APPLICATION...–––– III. STANDARD OF REVIEW...–––– IV. DISCUSSION...–––– B. Laurie A. Michelman...–––– C. Patrick Perfetti, Finney Raju, Christopher Simser, Elizabeth Healy, and Ray Kyles...–––– D. Victoria Monty...–––– E. C.O. Stacey, C.O. Traphagen, C.O. Haskins, C.O. Dorsett, C.O. Gleason, C.O. Reynolds, C.O. Fosbrook, C.O. Barhans, S. Delucia, D. Gage, N. Hawks, C.O. Smith, C.O. Ken Eaton, C.O. Nater, C.O. Barber, and C.O. Cavanagh...–––– F. Luke Fenchel, Jarrod Smith, Melissa Smith, and Kevin Jones...–––– G. Cheyenne Cute...–––– H. Nicholas Lynch and Mark Helms....–––– I. Cortland County...–––– J. Group Pleading...–––– K. Adam Raymond and Thomas Kiehle...–––– 1. Eighth Amendment...–––– 2. Fourteenth Amendment...–––– L. J. Tyler...–––– 1. Failure to protect from intolerable prison conditions....–––– 2. Fourteenth Amendment...–––– 3. Eighth Amendment...–––– 4. Derogatory Comments...–––– M. Sgt. Clark...–––– M. C.O. Johnston...–––– N. C.O. Jobson...–––– O. Nurse Christine – Jane Doe #46...–––– P. C.O. John Doe – Auburn C.F....–––– Q. John Doe #49 – Elmira C.F....–––– R. Fed. R. Civ. P. 8, 10, 18 and 20...–––– 1. Rule 8...–––– 2. Rule 10...–––– 3. Rules 18 and 20...–––– VI. CONCLUSION...–––– Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 238 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 I. BACKGROUND Parson's claims arise from his December 15, 2020 arrest for cashing a forged payroll check. (Dkt. 1, at 16). The forged check was drawn on the account of Ithaca Dispatch Taxi Company. (Id.). The Complaint asserts nine separate claims against 53 Defendants, spanning several years and numerous varying events. The facts giving rise to Parson's claims are presented in prose, consisting of 113 pages, and not in short, separately numbered paragraphs as required by Fed. R. Civ. P. 8 and 10. The Court will not provide a summary of the facts but will include them where necessary in its review of Parson's claims. II. IFP APPLICATION Parson declares in his IFP application that he is unable to pay the filing fee. (Dkt. 6). After reviewing the IFP application, this Court finds that Parson is financially eligible for IFP status. III. STANDARD OF REVIEW In addition to determining whether a plaintiff meets the financial criteria to proceed IFP, courts must also review the sufficiency of the allegations in the complaint under 28 U.S.C. § 1915. That statute requires a court to dismiss a case—at any time—if it determines that the action is (1) frivolous or malicious; (2) fails to state a claim on which relief may be granted; or (3) seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. § 1915 (e)(2)(B) (i)-(iii). When determining whether an action is frivolous, courts must consider whether the complaint lacks an arguable basis in law or in fact. See Neitzke v. Williams, 490 U.S. 319, 325 (1989), abrogated on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and 28 U.S.C. § 1915. Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; see also Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). *2 To be sure, courts have a duty to show liberality toward pro se litigants and must use extreme caution when sua sponte dismissing pro se complaints before adverse parties have been served and had an opportunity to respond. See Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee). But courts still have a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See id. IV. DISCUSSION A. Judge Defendants Parson names thirteen judges (the “Judges”) as defendants in this action, all of whom are immune from suit. 1 “The New York State Unified Court System is unquestionably an arm of the State and is entitled to Eleventh Amendment sovereign immunity.” Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (cleaned up). Similarly, judges within the New York State Unified Court System are entitled to Eleventh Amendment immunity to the extent they are sued in their official capacity. See Aron v. Becker, 48 F. Supp. 3d 347, 366 (N.D.N.Y. 2014) (dismissing claim against a Delaware County judge on sovereign immunity grounds). Therefore, Parson cannot assert his claims against the Judges in their official capacities, and the Court recommends that the Complaint be dismissed against the Judges with prejudice and without leave to amend. In addition to the Eleventh Amendment, the Judges are also immune on judicial immunity grounds. See McNair v. Utica Police Dep't, 6:23-CV-699 (DNH/ATB), 2023 WL 4935993, at *3 (N.D.N.Y. June 26, 2023), report and recommendation adopted, No. 6:23-CV-699, 2023 WL 4931609 (N.D.N.Y. Aug. 1, 2023). It is well settled that judges have absolute immunity for their judicial acts performed in their judicial capacities. See Mireles v. Waco, 502 U.S. 9, 11 (1991); see also Shtrauch v. Dowd, 651 F. App'x 72, 73-74 (2d Cir. 2016) (“Generally, ‘acts arising out of, or related to, individual cases before the judge are considered judicial in nature’ ”) (internal quotation omitted). “Judicial immunity applies even when the judge is accused of acting maliciously or corruptly.” Coon v. Merola, No. 1:19-CV-394 (DNH/ATB), 2019 WL 1981416, at *3 (N.D.N.Y. Apr. 8, 2019) (cleaned up) (citing Imbler v. Pachtman, 424 U.S. 409, 419 n.12, (1976)). “The only two circumstances in which judicial immunity does not apply is when he or she acts ‘outside’ his or her judicial capacity and when the judge takes action that, although judicial in nature, is taken ‘in absence of jurisdiction.’ ” Serrano v. Diperna, No. 24-CV-483, 2024 WL 5247710, at *5 (W.D.N.Y. Dec. 30, 2024) (quoting Mireles, 502 U.S. at 11-12). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 239 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 The fact that Parson alleges throughout the Complaint that some of the Judges “deprived him of his speedy trial rights —or any other rights—does not make that conduct any less judicial.” Serrano, 2024 WL 5247710, at *5 (dismissing the allegations against the judge defendants). The allegations against the Judges relate to actions allegedly taken by them in connection with Parson's various speedy trial law motions, his motion to proceed pro se, or his habeas petitions in the Appellate Division – Third Department. None of the rulings/actions taken by the Judges in response to Parson's procedural maneuverings can be considered as anything other than judicial in nature. See id. *3 Parson's allegations that some of the Judges “lacked jurisdiction” to continue prosecuting the forged instrument case because of the speedy trial law violation does not mean that they “acted in the complete absence of all jurisdiction.” Mireles, 502 U.S. at 11; see also (Compl., Dkt. 1, at 63-75). There is a difference between a judge who acts in “excess of jurisdiction” and one who acts in “the clear absence of all jurisdiction over the subject[ ]matter.” Stump v. Sparkman, 435 U.S. 349, 356-57, 356 n.6, 98 (1978) (citations omitted). Here, Parson does not claim that any Judge erred in exercising jurisdiction over his criminal matter. Rather, Parson alleges that the Judges erred in not dismissing it based on the government's delay. In other words, Parson's allegations— at most—suggest that the Judges exceeded their jurisdiction or exercised their authority “error[neously]” or “maliciously” which are insufficient grounds to overcome the application of judicial immunity. See Stump, 435 U.S. at 356. Accordingly, the Court recommends that the Complaint be dismissed against the Judges, including Judge Alexander, with prejudice and without leave to amend. Any amendment would be futile. B. Laurie A. Michelman Laurie Michelman is immune from suit and the Complaint should be dismissed against her with prejudice and without leave to amend. Judicial immunity has been extended to court clerks and “others who perform functions closely associated with the judicial process” when they are performing discretionary acts of a judicial nature which are essential to the judicial process, especially the filing of court documents and managing a court's calendar. See Cleavinger v. Saxner, 474 U.S. 193, 200 (1985); see also Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997) (extending judicial immunity to state court clerks who were ordered by Appellate Division judges not to provide a litigant with documents and not to expand the record on appeal). Indeed, a “clerk's office activities of filing and docketing legal documents” are an “integral part of the judicial process” and are thus entitled to absolute immunity. McKnight v. Middleton, 699 F. Supp. 2d 507, 526 (E.D.N.Y. 2010) (cleaned up), aff'd, 434 F. App'x 32 (2d Cir. 2011); see also Bey v. New York, No. 11-CV-3296, 2012 WL 4370272, at *7 (E.D.N.Y. Sept. 21, 2012) (holding that court clerks were entitled to “absolute quasi[-]judicial immunity” in suits alleging they refused to file documents); Humphrey v. Court Clerk for the Second Circuit, No. 08-CV-0363, 2008 WL 1945308, at *2 (N.D.N.Y. May 1, 2008) (court clerks enjoy absolute immunity “if the task was undertaken pursuant to the explicit direction of a judicial officer or pursuant to the established practice of the court” (citing Rodriguez, 116 F.3d at 67)). Here, Parson alleges that: V. Monty lied to Court Assistant Michelman who turned a blind eye to Plaintiff's illegal detention. V. Monty lied to her in letter saying I was arraigned on assault indictment on 11/9/2023 when bail was set at $100k when in fact I was not arraigned on the indictment until 2/22/24. Ms. Michelman requested the transcript to court appearance for 2/22/24 with deadline yet no transcripts were ever turned over ‘til this day. (Dkt. 1, at 79). Michelman's alleged actions, or inactions, occurred within the scope of her functions as a court clerk, which entitles her to immunity. The Court therefore recommends that Parson's Complaint as to Defendant Michelman be dismissed with prejudice and without leave to amend. Any amendment would be futile. C. Patrick Perfetti, Finney Raju, Christopher Simser, Elizabeth Healy, and Ray Kyles “Prosecutors sued under § 1983 enjoy absolute immunity ‘from claims for damages arising out of prosecutorial duties that are intimately associated with the judicial phase of the criminal process.’ ” Joyner v. Cty. of Cayuga, No. 5:20-CV-1904088 (MAD/TWD), 2020 WL 1904088, at *9 (N.D.N.Y. Apr. 17, 2020) (cleaned up) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). Assistant attorney generals enjoy the same immunity. See, e.g., Barr v. Abrams, 810 F.2d 358, 361 (2d Cir. 1987) (holding Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 240 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 assistant attorney generals immune from suit based on their actions in filing a criminal information and procuring arrest warrant). Prosecutorial immunity from § 1983 liability covers “virtually all acts, regardless of motivation, associated with [the prosecutor's] function as an advocate.” Hill v. City of New York, 45 F.3d 653, 661 (2d Cir. 1995) (quoting Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). This includes “the decision to bring charges against a defendant, presenting evidence to a grand jury, and the evaluation of evidence prior to trial.” Moye v. City of New York, No. 11-CV-316, 2012 WL 2569085, at *5 (S.D.N.Y. July 3, 2012) (quoting Johnson v. City of New York, No. 00-CV-3626, 2000 WL 1335865, at *2 (S.D.N.Y. Sept. 15, 2000)). Immunity even extends to “the falsification of evidence and the coercion of witnesses[;]” “the knowing use of perjured testimony[;]” “the deliberate withholding of exculpatory information[;]” the “making [of] false or defamatory statements in judicial proceedings[;]” and the “conspiring to present false evidence at a criminal trial[.]” 2 *4 Perfetti, Raju, Simser, Elizabeth, and Kyles are immune from suit. Parson alleges that: (1) Simser, among other things, allowed Cute to present false and misleading testimony to the grand jury, and conspired to bury evidence that “implicated the actual culprits” (T. 26-27); (2) Healy conspired to bury evidence that allegedly “implicated the actual culprits in order to effect a scape goat prosecution of plaintiff” (T. 27); (3) Raju allowed a witness to offer perjurious testimony in a criminal mischief case (T. 81); (4) Kyles conspired to “prolong illegal detention of plaintiff and all other defendants” in the forged instrument prosecution (T. 27), and “argued against Habeas release” (T. 79); and (5) Perfetti conspired to bury evidence “that implicated the actual culprits in order to effect a scape goat prosecution of plaintiff” (T. 27), omitted 4 months from the speedy trial law calculation arising from a December 8, 2022 complaint for assault (T. 33), approved Defendant Healy's “blatant misconduct” (T. 41), and failed to supervise and train the assistant district attorneys (T. 44). All this alleged conduct occurred within the scope of their employment. So Simser, Healy, Raju, Perfetti, and Kyles are immune from suit. Thus, the Court recommends that the Complaint be dismissed against them with prejudice and without leave to amend. D. Victoria Monty The Court recommends that the District Court dismiss the Complaint as to Monty with prejudice and without leave to amend. The Complaint is unclear as to whether Monty was an Assistant District Attorney or the Cortland County Attorney at the time of the alleged acts giving rise to Parson's claims against her. Compare (T. 43) with (T. 79). So the Court analyzes Monty's alleged liability under both scenarios and finds that she is immune either way. 3 To the extent Monty was acting as Corporation Counsel and not as an Assistant District Attorney at the time Parson's alleged claims accrued, she is nevertheless immune from suit. Government attorneys are immune from suit under Section 1983 for damages “when functioning as an advocate of the state [or local government] in a way that is intimately associated with the judicial process.” Mangiafico v. Blumenthal, 471 F.3d 391, 396 (2d Cir. 2006). This immunity applies to government attorneys who perform functions “ ‘that can fairly be characterized as closely associated with the conduct of litigation or potential litigation’ in civil suits.” Id.; see also O'Callaghan v. City of New York, No. 16-CV-1139, 2016 WL 7177509, at *11 (S.D.N.Y. Dec. 8, 2016) (holding that an Assistant Corporation Counsel defendant was entitled to absolute immunity for defending the City of New York in a state civil action). Here, Parson claims that Monty: (1) “buried evidence that implicated the actual culprits in order to effect a scape goat prosecution of Plaintiff” (T. 27); (2) omitted 4 months from the speedy trial calculations in connection with a felony complaint for assault (T. 33); (3) lied about the date that Parson was arraigned on the assault indictment (T. 43); (4) lied about Parson allegedly throwing his “own waste on a correction officer in Cortland County in [an] attempt to have restraints on me at trial which Judge did grant” (T. 43); and (5) lied to Michelman about Parson's arraignment date (T. 79). All this conduct arises from Monty litigating activities in Cortland County courts. So she is immune from suit. The Court, therefore, recommends the Complaint should be dismissed against her with prejudice and without leave to amend. Any amendment would be futile. E. C.O. Stacey, C.O. Traphagen, C.O. Haskins, C.O. Dorsett, C.O. Gleason, C.O. Reynolds, C.O. Fosbrook, C.O. Barhans, S. Delucia, D. Gage, N. Hawks, C.O. Smith, C.O. Ken Eaton, C.O. Nater, C.O. Barber, and C.O. Cavanagh The Court recommends that the Complaint be dismissed without prejudice and with leave to amend as to Defendants C.O. Stacey, C.O. Traphagen, C.O. Haskins, C.O. Dorsett, C.O., Gleason, C.O. Reynolds, C.O. Fosbrook, C.O. Barhans, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 241 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 S. Delucia, D. Gage, N. Hawks, C.O. Smith, C.O. Ken Eaton, C.O. Nater, C.O. Barber, and C.O. Cavanagh. *5 Pleadings must contain, among other things, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (cleaned up). “The purpose of [Rule 8] is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 55 (N.D.N.Y. 1999) (internal quotations and citations omitted). Rule 8 also requires the pleading to include “a short and plain statement of the grounds for the court's jurisdiction” and “a demand for the relief sought[.]” Fed. R. Civ. P. 8(a)(1), (3). “Although ‘no technical form is required,’ the Federal Rules make clear that each allegation contained in the pleading ‘must be simple, concise, and direct.’ ” Cole v. Smrtic, No. 1:24- CV-847 (MAD/CFH), 2024 WL 4870495, at *2 (N.D.N.Y. 2024) (quoting Fed. R. Civ. P. 8(d)). Allegations “so vague as to fail to give the defendants adequate notice of the claims against them” are subject to dismissal. Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009) (summary order). Although listed in the caption, the Complaint lacks any specific allegations against Defendants C.O. Stacey, C.O. Traphagen, C.O. Haskins, C.O. Dorsett, C.O., C.O. Gleason, C.O. Reynolds, C.O. Fosbrook, C.O. Barhans, S. Delucia, D. Gage, N. Hawks, C.O. Smith, C.O. Ken Eaton, C.O. Nater, C.O. Barber, and C.O. Cavanagh. Instead, Parson alleges that “[a]ll C.O.s and higher[-]ranking officers in the various facilities that are named in this claim are involved in the conspiracy to ‘squeeze’ a plea bargain out of me which did not work and they all punished me for not copping out.” (T. 81). Parson further alleges that “[e]ach correction officer who wrote [a] ticket for not closing gate is liable for wrongful/ unlawful confinement[.]” (T. 96). As pleaded, Parson's allegations do not afford the above-named defendants with sufficient information to allow them to properly defend themselves. Stated differently, the Complaint is a “unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft, 556 U.S. at 678. And that is not enough to state a claim. See Scott v. Djeck, No. 5:09-CV-1122 (GTS/GHL), 2010 WL 145297, at *3 (N.D.N.Y. Jan. 11, 2010) (“Where a defendant is listed in the caption but the body of the complaint fails to indicate what the defendant did to the plaintiff, dismissal is appropriate.”). The Complaint should therefore be dismissed. F. Luke Fenchel, Jarrod Smith, Melissa Smith, and Kevin Jones The Court recommends dismissing the Complaint against Fenchel, Jarrod Smith, Melissa Smith, and Jones with prejudice and without leave to amend because they are not state actors. Criminal defense attorneys, who represent a client during criminal proceedings, are not “persons” acting under color of state law for purposes of liability under Section 1983. See Polk County v. Dodson, 454 U.S. 312, 325, (1981). To support a Section 1983 claim, the defendant must be acting under “color of state law.” However, an attorney representing a client in a criminal trial, whether that attorney is a public defender, legal aid attorney, or court-appointed counsel, is not acting under the color of state law. See Polk County, 454 U.S. at 325; see also Rodriquez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (stating that it is well established that private attorneys—even if the attorney was court appointed—are not state actors for the purposes of Section 1983 claims.). Parson's attorneys are therefore not state actors under Section 1983. Even if these Defendants were liable under § 1983, Parson has not plausibly alleged conduct they could be held liable for. Section 1983 liability may attach to defense attorneys if they conspire with state officials. See Tower v. Glover, 467 U.S. 914, 923 (1984) (public defender who conspired with state officials held liable under section 1983). But Parson has not plausibly alleged facts that give rise to a conspiracy. For example, Parson alleges that Jarrod Smith “conspired with Judge Campbell and DA Perfetti to change the commencement date of assault charge from December 8, 2022 to April 21, 2023.” (T. 53). Parson further alleges that Fenchel was “ignorant to the law and going along with the DA and Judge (Perfetti and Campbell) in ignoring clear speedy trial violation.” (T. 41). Finally, Parson alleges that “[a]ll defendants conspired with Judge J. Campbell and Cortland County Municipality to deprive Plaintiff's State and Federal Constitutional rights in order to inflate arrest and conviction rates for County of Corland and whatever quid prop quo they established.” (T. 20). These allegations are simply too conclusory to state a claim that Parson's attorneys conspired with state officials to violate his constitutional rights. See Ciambriello v. County of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) (“A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a [section] 1983 claim against the private entity.”). *6 Finally, the Court recommends that Parson's claim for legal malpractice against Fenchel, M. Smith, J. Smith, and Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 242 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 Jones be dismissed without prejudice and without leave to amend because “an action for legal malpractice ... is not cognizable under [Section] 1983 since there is a total absence of state action as required by that section.” Sommer v. Rankin, 449 F. Supp. 66, 67 (S.D.N.Y. 1978); see also Stevenson v. Schiano, 2025 WL 1895830, at *9 fn. 7 (W.D.N.Y. Mar. 19, 2025). G. Cheyenne Cute The Court recommends that the District Court dismiss Parson's malicious prosecution claim against Defendant Cute with prejudice and without leave to amend. Under New York law, “the elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause and (4) malice.” Rivas v. Suffolk County, 326 F.Supp. 2d 355, 362 (E.D.N.Y. Jul. 21, 2004) (quoting Colon v. City of New York, 60 N.Y.2d 78, 82 (1983)). The existence of probable cause is a complete defense to a claim of malicious prosecution. Id. (citing Colon, 60 N.Y.2d at 82). An indictment before a grand jury creates a presumption of probable cause that may only be rebutted by evidence that the indictment was procured by “fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.” Id. (quoting Colon, 60 N.Y.2d at 83); see also Bermudez v. City of N.Y., 790 F.3d 368, 377 (2d Cir. 2015). Plaintiffs cannot “rebut the presumption of probable cause with mere conjecture and surmise that [their] indictment was procured as a result of conduct undertaken by the defendants in bad faith.” Savino v. City of New York, 331 F.3d 63, 73 (2d Cir. 2003) (cleaned up). To plausibly allege a malicious prosecution claim, plaintiffs must plead that the criminal proceeding terminated in their favor. Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). In this context, favorable termination means a “final disposition” that “indicate[s] the innocence of the accused.” Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir. 1997); see also Russell v. Smith, 68 F.3d 33, 36 (2d Cir. 1995) (“In the absence of a decision on the merits, the plaintiff must show that the final disposition is indicative of innocence.”). In support of his claim for malicious prosecution, Parson alleges that: • “[w]ithout probable cause, [Cute] closed his eyes to facts that would have helped clarify the circumstances of the incident concerning negotiation of the check on June 15, 2020” (Compl., Dkt. 1, at 22), • “probable cause dissipated well before Grand Jury testimony of Sgt. Cute on June 4, 2021” (Id., at 22), and • “[it] must be undisputed that probable cause dissipated once indictment expired 9/12/2021 yet prosecution continued maliciously.” (Id., at 24). Parson's allegations are meritless. “The fact that the Grand Jury returned an indictment against [Plaintiff] creates a presumption that his arrest and indictment were procured with probable cause.” Lawrence v. Sherman, No. 1:20-CV-694 (MAD/DJS), 2020 WL 7029171, *2 (N.D.N.Y. July 28, 2020) Since Parson was indicted, his argument that there was a lack of probable to prosecute him is presumptively without merit. A counterargument on this score does not pass muster. To be sure, malicious prosecution claimants may rebut probable cause findings by proffering evidence that the indictment was procured by “fraud, perjury, the suppression of evidence or other bad police conduct.” Id. But Parson's attempt to do so is unavailing. While Parson claims that “[e]vidence was deliberately and maliciously suppressed from plaintiff and the Grand Jury” his allegations, without more, are insufficient to obviate the finding of probable cause. See (Compl., Dkt. 1, at 25); see also Savino, 331 F.3d at 73. *7 Last, Parson's reliance on Judge Campbell's April 22, 2024 order dismissing the underlying indictment on speedy trial grounds as a predicate for negating the existence of probable cause in the first instance is misplaced. See (Dkt. 1-1) Speedy trial dismissals are “insufficient to establish the absence of probable cause” for an underlying arrest. Everett v. Dean, No. 3:20-CV-01260 (AMN/ML), 2023 WL 5452753, *7 (N.D.N.Y. Aug. 24, 2023). So Parson cannot rely on Judge Campbell's April 22, 2024 decision to counter a finding of probable cause. Parson's claim for malicious prosecution therefore fails and any amendment would be futile. H. Nicholas Lynch and Mark Helms. The Court recommends that the District Court dismiss the Complaint as to Lynch and Helms without prejudice and with leave to amend. Parson's ninth claim alleges that Lynch and Helms (sued in their individual capacities) “fail[ed] to train, supervise, or discipline officers at the jail in order to protect Plaintiff Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 243 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 from obvious threat of retaliation.” (Compl., Dkt. 1, at 83). Specifically, Parson alleges that the jail “implement[ed] a close your door while out of your cell rule” which was “pure oppression and retaliation serving no penological purpose.” (Id.). Parson also alleges that “a jury could permissibly find that the harassment, intimidation, and endangerment of Plaintiff was at least indirectly caused by Helms and directly caused by Lynch, both through their acquiescence in that misconduct and through their deliberate indifference to the need to train their staff not to retaliate against an inmate for exercising his First Amendment rights.” (Compl., Dkt. 1, at 91). Parson's vague and conclusory assertions are insufficient to establish that Lynch and Helms knew their subordinates engaged in any purported misconduct. The Complaint lacks facts about what Lynch and Helms did or did not do to supervise or instruct their subordinates. These unadorned claims are insufficient to plausibly allege that Lynch and Helms’ personal involvement in their subordinates’ alleged misconduct. See Villafane v. Sposato, No. 16-CV-3674, 2017 WL 4179855, at *15 (E.D.N.Y. Aug. 22, 2017) (dismissing plaintiff's claim because, in part, he “fail[ed] to set forth any detail regarding how [the supervisory] Defendant ... failed to supervise his subordinates or which subordinates he failed to supervise”); see also McRae v. Gentile, No. 14-CV-783, 2015 WL 7292875, at *5 (N.D.N.Y. Oct. 20, 2015) (“[V]ague and conclusory allegations that a supervisor failed to properly monitor the actions of subordinate employees do not suffice to establish the requisite personal involvement and support a finding of liability.”) (citing Pettus v. Morgenthau, 554 F.3d 293, 300 (2d Cir. 2009)); Styles v. Goord, 431 F. App'x 31, 33 (2d Cir. 2011) (no personal involvement where plaintiff “did not allege ... any facts concerning [supervisor defendants’] particular conduct in supervising their subordinates”). The Complaint should therefore be dismissed against Lynch and Helms. I. Cortland County Liberally construed, the Complaint asserts two different theories of liability against Cortland County. Parson's first claim is predicated on a theory of failure to train and supervise officers in its police department. (Complaint, Dkt. 1, at pg. 37). Next, Parson seeks to impose liability against Cortland County on the theory that Helms and Lynch are “policy makers.” (Compl, Dkt., 1, at 90). This Court recommends that Parson's claims against Cortland County on both theories be dismissed without prejudice and with leave to amend. 1. Failure to Train/Supervise *8 To succeed on a municipal liability claim for failure to supervise, discipline, or train, a plaintiff must establish “deliberate indifference.” Kosmidis v. Port Auth. of New York & New Jersey, 2021 WL 4442812, at *7 (S.D.N.Y. Sept. 28, 2021) (cleaned up). Plaintiffs may satisfy the “deliberate indifference” requirement by pleading that (1) “a policy- maker knows to a moral certainty that her employees will confront a given situation;” (2) “the situation either presents the employee with a difficult choice of the sort that training or supervision will make less difficult or that there is a history of employees mishandling the situation;” and (3) “the wrong choice by the city employee will frequently cause the deprivation of a citizen's constitutional rights.” Id. (citation omitted). Plaintiffs must plausibly allege that there was an obvious need for more or better protocols or supervision to protect against constitutional violations, by, for example, proof of repeated complaints of civil rights violations. See Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995). “Deliberate indifference may be inferred if the complaints are followed by no meaningful attempt on the part of the municipality to investigate or to forestall further incidents.” Id. Parson alleges that “Defendant Cortland County should know that officers of its police department would face situations in which they are expected to conduct investigations, collect information, and create reports about event based on those activities.” (Complaint, Dkt. 1, at pg. 37). Parson's conclusory allegations are insufficient to plausibly allege deliberate indifference. A single incident of alleged wrongdoing by individual police officers is not enough to sustain a Section 1983 claim against a municipality. See Bird v. Cnty. of Westchester, No. 20-CV-10076, 2022 WL 2263794, at *12 (S.D.N.Y. June 23, 2022) (“[The] [p]laintiff fails to allege the existence of any other similar incident, which dooms [the p]laintiff's claim because a custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the municipality.”) (internal quotation marks and citation omitted). Yet Parson does not include any information about the police department's training or supervisory procedures and “has not alleged that the ‘policymaker fail[ed] to make meaningful efforts to address the risk of harm to [the] plaintiff[ ].’ ” Fantozzi v. City of New York, No. 21-CV-4439, 2023 WL 4472305, at *5 (S.D.N.Y. July 11, 2023) (citation omitted). Parson does not cite “other instances of police misconduct which could Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 244 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 be attributed to a failure to train.” Reynolds v. City of New York, 21-CV-6111, 2024 WL 371863 at *18 (E.D.N.Y. Aug. 8, 2024). The Court therefore recommends that the District Court dismiss the claims against Cortland County for failure to train/supervise without prejudice and with leave to amend. 2. Helms and Lynch as policy makers/ a Monell claim against the County Next, Parson alleges that “Helms and Lynch was county's final policymaker with respect to conduct of his staff members towards inmates exercising their First Amendment rights to speak publicly.” (Compl, Dkt., 1, at 90). According to the Complaint, “[r]etaliation for [Parson's] grievances and promise to sue was directly caused by Sheriff Helms with captain Lynch direct involvement.” (Id.). Even though Parson indicates that Lynch and Helms are being sued in their individual capacities as more fully addressed above, Parson's allegations against them suggest a possible Monell claim against Cortland County, and the Court proceeds to analyze it accordingly. See Monell v. Dep't of Social Services. Of the City of N.Y., 436 U.S. 658 (1978). Monell dictates that any § 1983 claim against a municipal entity must be premised on the theory that the municipal actor's allegedly unconstitutional “acts were performed pursuant to a municipal policy or custom.” Patterson v. Cnty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004). Courts in this Circuit apply a two-prong test for Section 1983 claims brought against a municipal entity. See Vippolis v. Vill. Of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (internal citation omitted). First, a plaintiff must “prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer.” Id. “Second, the plaintiff must establish a causal connection— an ‘affirmative link’—between the policy and the deprivation of his constitutional rights.” Id. (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 836, n.8 (1985)). *9 To satisfy the first requirement, a plaintiff must plausibly allege the existence of: (1) a formal policy which is officially endorsed by the municipality; (2) actions taken or decisions made by government officials responsible for establishing municipal policies which caused the alleged violation of the plaintiff's civil rights; (3) a practice so persistent and widespread that it constitutes a custom or usage and implies the constructive knowledge of policy-making officials; or (4) a failure by official policy-makers to properly train or supervise subordinates to such an extent that it amounts to deliberate indifference to the rights of those with whom the municipal employees will come into contact. Moray v. City of Yonkers, 924 F.Supp. 8, 12 (S.D.N.Y. 1996) (internal citations and quotation marks omitted). Although “[a] plaintiff is not required to identify an express rule or regulation in order to establish a Monell claim, and a court may infer a municipal policy from acts or omissions of the municipality's policy makers, ... in the absence of other evidence, a ‘single incident of errant behavior is an insufficient basis for finding that a municipal policy caused plaintiff's injury.’ ” JF v. Carmel Cent. Sch. Dist., 168 F. Supp, 3d 609, 617 (S.D.N.Y. 2016) (quoting Sarus v. Rotundo, 831 F.2d 397, 402-03 (2d Cir. 1987)). As an initial matter, Parson surmises that Lynch and Helms are policy makers. And, even if they were, “rubberstamp[ing]” or “turn[ing] a blind eye” to their subordinates’ decision- making is not sufficient to establish either a municipal policy or the delegation of policymaking authority. Baity v. Kralik, 51 F. Supp. 3d 414, 442 (S.D.N.Y. 2014) (citations omitted). Parson cannot just assert Monell liability simply by alleging that Lynch and Helms knew of their subordinates’ actions. (Dkt. 1, at pg. 90). Parson must allege, which he has not, that Defendants Lynch and Helms themselves caused the purported deprivation of Parson's rights. See Stalter v. Cnty. of Orange, No. 15-CV-5274, 2016 WL 8711397, at *10 (S.D.N.Y. Aug. 5, 2016). And to the extent that Parson intends to assert a claim against Cortland County, he has not complied with the pleading requirements to maintain a Monell claim. The Court therefore recommends that Parson's claim against Cortland County be dismissed without prejudice and with leave to amend. J. Group Pleading Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 245 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 The Court recommends that the District Court dismiss the Complaint as to the “Cortland County Jail Officials” and “[e]ach Correction[s] Officer who wrote [me a] ticket for not closing [my] gate” without prejudice and with leave to amend. (Complaint, Dkt. 1, at 89). Group pleading is generally impermissible as a violation of the Federal Rules of Civil Procedure's notice requirements. See Atuahene v. City of Hartford, 10 F. App'x 33, 34 (2d Cir. 2001) (explaining that “lumping all the defendants together in each claim and providing no factual basis to distinguish their conduct” fails to satisfy minimum “fair notice” standard of FRCP Rule 8). Here, Parson makes allegations against “[e]ach Correction[s] Officer who wrote [me a] ticket for not closing [my] gate” be dismissed (Complaint, Dkt. 1, at pg. 96). However, Parson's group pleading fails to provide fair notice to any Cortland County Jail Official or Corrections Officer. Parson's inclusion of the “Cortland County Jail Officials” and “each Correction Officer who wrote ticket for not closing gate” also violates Fed. R. Civ. P. 10 as the individuals purportedly comprising these classes of individuals were not specifically named in the caption of this action. Accordingly, the Court recommends that the Complaint be dismissed without prejudice and with leave to amend as to the “Cortland County Jail Officials” and “Corrections Officers.” K. Adam Raymond and Thomas Kiehle *10 The Court recommends that the District Court permit Parson's excessive force claim against Defendants Raymond and Kiehle to proceed. The Court cannot determine based on the allegations in the Complaint whether Parson was a pre-trial detainee or incarcerated at the time his claim for excessive force accrued. So the Court will analyze Parson's claim under the Eighth and Fourteenth Amendments. 1. Eighth Amendment Incarcerated individuals enjoy Eighth Amendment protection against the use of excessive force and may recover damages under 42 U.S.C. § 1983 for a violation of those rights. See Hudson v. McMillian, 503 U.S. 1, 9-10 (1992). To sustain an Eighth Amendment excessive-force claim, plaintiffs must establish both an objective and subjective element. See Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999); see also Romano v. Howarth, 998 F.2d 101, 105 (2d Cir. 1993). To satisfy the objective element, plaintiffs must prove that a defendant's conduct was “inconsistent with the contemporary standards of decency.” Whitely v. Albers, 475 U.S. 312, 327 (1986) (citation omitted); Hudson, 503 U.S. at 9 (1992). “The Eighth Amendment's prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Hudson, 503 U.S. at 9-10 (citations omitted). “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.” Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000) (citation omitted). Claims “of excessive force may be established even if the victim does not suffer serious ... or significant injury, ... provided that the amount of force used is more than de minimis or involves force that is repugnant to the conscience of mankind.” Hudson, 503 U.S. at 7-10 (cleaned up). To prove the subjective element, plaintiffs must show that the Defendant's actions were wanton. See Sims, 230 F.3d. at 21 (citation omitted). The wantonness inquiry “turns on ‘whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’ ” Id. (quoting Hudson, 503 U.S. at 7). When determining whether defendants acted in a malicious or wanton manner, courts consider five factors: (1) the extent of the injury and the mental state of the defendant; (2) the need for the application of force; (3) the correlation between that need and the amount of force used; (4) the threat reasonably perceived by the defendants; and (5) any efforts made by the defendants to temper the severity of a forceful response. Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003). 2. Fourteenth Amendment A pretrial detainee bringing a Fourteenth Amendment excessive-force claim must plausibly allege the defendant acted deliberately and “that the force purposely or knowingly used against him was objectively unreasonable.” Kingsley v. Hendrickson, 576 U.S. 389, 396-9 (2015). Factors to consider in determining the objective reasonableness of the force used under the Fourteenth Amendment include: *11 the relationship between the need for the use of force and the amount of Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 246 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 force used; the extent of the plaintiff's injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting. Id. at 397. “[A] claim of excessive force,” under the Fourteenth Amendment, “may be established even if the victim does not suffer ‘serious,’ ... or ‘significant’ injury, ... provided that the amount of force used is more than ‘de minimis,’ or involves force that is ‘repugnant to the conscience of mankind.’ ” United States v. Walsh, 194 F.3d 37, 47-48 (2d Cir. 1999) (quoting Hudson v. McMillian, 503 U.S. 1, 9, (1992)). Parson's Complaint plausibly alleges an excessive force claim under the Eighth or Fourteenth Amendments. Parson alleges that he was taken “to a holding cell and slammed face first by C.O. Adam Raymond/C.O. Kiele then sat on my hands which were cuffed behind me breaking my left thumb where my knuckle remains in the front of my thumb unable to ever move it again unless I get surgery.” (Compl., Dkt. 1, at 97). These allegations plausibly allege C.O. Adam Raymond/C.O. Kiele use excessive force. As a result, this Court recommends the District Court allow Parson's excessive-force claim against C.O. Adam Raymond/C.O. Kiele to proceed. 4 L. J. Tyler The Court recommends that Parson's claims against Defendant Tyler arising from the alleged failure to protect him from foreseeable harm be dismissed without prejudice and with leave to amend. To the extent the Complaint alleges a claim against Tyler arising from purported derogatory remarks made by him to Parson, the Court recommends that the same be dismissed with prejudice and without leave to amend. 1. Failure to protect from intolerable prison conditions. Parson alleges that “there were no measures taken” by Defendant Tyler “to prevent [any] foreseeable harm” associated with being placed in “A-block next to Frank.” (Dkt. 1, at 87). In support of his claim, Parson's relies on Defendant Tyler's purported statement that “I'm surprised Frank didn't beat your ass.” (Id.). Reading Parson's pro se pleading leniently as it must do, the Court construes his allegations as a failure to protect claim. However, the Court cannot discern whether Parson was a pre-trial detainee or incarcerated individual at the time his purported claim accrued. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). The Court will therefore analyze Parson's failure to protect claim under the Eighth and Fourteenth Amendments. 2. Fourteenth Amendment “The Due Process Clause of the Fourteenth Amendment protects pre-trial detainees ... against intolerable prison conditions.” Damon v. New York, No. 8:23-CV-74, 2023 WL 11965130 (GLS/CFH), *14 (N.D.N.Y. Mar. 28, 2023). “The failure to protect a pre-trial detainee from harm is one type of intolerable prison condition. Thus, a prison official's deliberate indifference to a substantial risk of serious harm to an inmate may form the basis of a deliberate indifference claim.” Id. (cleaned up). “Not every injury suffered by one inmate at the hands of another imposes constitutional liability on officials responsible for the victim's safety.” Little v. Cnty. of Nassau, 708 F. Supp. 3d 252, 263 (E.D.N.Y. 2023) (citation omitted). *12 Plaintiffs must plausibly allege two elements “to prove a deliberate-indifference claim under the Fourteenth Amendment, including when invoking a theory of failure to protect against (i.e., prevent) an inmate attack.” Id. The first element is an “ ‘objective prong’ showing that the challenged conditions were sufficiently serious to constitute objective deprivations of the right to due process.” Darnell, 849 F.3d at 29. The second element is the mens rea prong which requires the plaintiff to plausibly allege “that the officer acted with at least deliberate indifference to the challenged conditions.” Id. “When a prisoner is subjected to specific threats from another inmate, and there are indication[s] that the threat will be carried out, the failure of prison officials to act may give rise to a deliberate indifference claim.” Damon, 2023 WL 11965130, at *14 (cleaned up). “The objective prong can be satisfied even where no serious physical injury results.” Id. (cleaned up). “At bottom, in assessing whether the risk of an inmate's violence against other inmates is sufficiently serious, to trigger constitutional protection, the focus of inquiry must be, not the extent of the physical injuries sustained in an attack, but rather the existence of a substantial risk of serious harm.” Id. (cleaned up). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 247 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 a. Objective Prong There is no “static test” as to whether the evidence establishes sufficiently serious conditions to satisfy the “objective prong.” Darnell, 849 F.3d at 30. A prison official's failure to “intervene in an attack ... may under certain circumstances create a condition which poses a substantial risk of serious harm thus constituting a sufficiently serious constitutional violation.” Molina v. County of Westchester, No. 16-CV-3421, 2017 WL 1609021, at *3 (S.D.N.Y. Apr. 28, 2017). When evaluating whether the risk of an inmate being harmed by another inmate is “ ‘sufficiently serious,” the inquiry is whether “a substantial risk of serious harm existed.” Blake v. Kelly, No. 12-CV-7245, 2014 WL 4230889, at *5 (S.D.N.Y. Aug. 26, 2014). While a prior altercation may support the factual finding of a substantial risk of serious harm, there is no requirement of a prior altercation. See Luckey v. Jonas, No. 18-CV-8193, 2019 WL 4194297, at *4 (S.D.N.Y. Sept. 2019). b. Mens rea prong To satisfy the mens rea prong, “the pretrial detainee must [plausibly allege] that the defendant-official acted intentionally ... or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Darnell, 849 F.3d at 35. The mens rea prong is objective in nature (unlike in the Eighth Amendment context where it is subjective). Id., at 35-36. A pretrial detainee must therefore plausibly allege that the prison official acted purposefully or with an objectively reckless disregard of the risk to the inmate - mere negligence is insufficient. Id. at 36. 3. Eighth Amendment “The Eighth Amendment requires prison officials ‘to take reasonable measures to guarantee the safety of the inmates.’ ” Morgan v. Dzurenda, 956 F.3d 84, 89 (2d Cir. 2020) (quoting Farmer v. Brennan, 511 U.S. 825, 832, (1994)). This responsibility “extends to ‘protect[ing] prisoners from violence at the hands of other prisoners.’ ” Id. (alteration in original) (quoting Farmer, 511 U.S. at 832). An incarcerated individual “seeking to establish an Eighth Amendment violation for failure to protect or deliberate indifference to safety must prove (1) ‘that [the plaintiff] is incarcerated under conditions posing a substantial risk of serious harm,’ and (2) that the prison official had a ‘sufficiently culpable state of mind,’ which in ‘prison-condition cases’ is ‘one of deliberate indifference to inmate health or safety.’ ” Morgan, 956 F.3d at 89 (alteration in original) (quoting Farmer, 511 U.S. at 834). *13 The “deliberate indifference” standard is comprised of both an objective and subjective prong. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). “First, the alleged deprivation must be, in objective terms, sufficiently serious.” Id. (internal quotation marks and citation omitted). “Second, the charged official must act with a sufficiently culpable state of mind.” Id. This mens rea requirement is “more than negligence, but less than conduct undertaken for the very purpose of harm.” Id. “More specifically, a prison official does not act in a deliberately indifferent manner unless that official ‘knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.’ ” Id. (quoting Farmer, 511 U.S. at 837). Parson cannot satisfy the objective prong under the Eighth or Fourteenth Amendments. Specifically, the Complaint is devoid of any allegations that: (1) Tyler was personally involved in the decision to place Parson in A-block; (2) Tyler physically placed Parson in A-block; (3) Frank ever attacked or threatened to attack Parson; and (4) Parson ever told any official at the Cortland County Jail that he felt unsafe or threatened being in A-block. Thus, the Parson has not plausibly alleged a substantial risk of serious harm existed. Similarly, Parson cannot satisfy the subjective prong under the Eighth or Fourteenth Amendments. There are no allegations in the Complaint plausibly suggesting that Tyler acted in an objectively reckless manner or that Tyler was aware of facts from which he could draw and inference that Frank posed a substantial risk of serious harm. Again, the Complaint lacks any allegations that Tyler was personally involved in placing Parson in A-block or that Frank previously threatened and/or attacked Parson. Even if Parson plausibly alleged that he did not feel safe around Frank or that Frank might be after him, which he did not, that too would be insufficient for Parson's claim against Defendant Tyler to survive initial review. See Morgan v. Dzurenda, 956 F.3d 84 90 (2d Cir. 2020) (general complaints to officer that inmate Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 248 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 had been “threatened” by a certain inmate and “feared for his safety” were not sufficient to notify officers of substantial risk of harm); see also Wilson v. Campbell, No. 06-CV-175 (GLS/ RFT), 2008 WL 902187, at *5 (N.D.N.Y. Mar. 31, 2008) (“A general, conclusory statement that an inmate fears for his safety, without more, is insufficient information from which an inference can been drawn that such inmate's a safety is actually at risk.”) Accordingly, the Court recommends that the Complaint be dismissed against Defendant Tyler without prejudice and with leave to amend. 4. Derogatory Comments The Court recommends that the Complaint be dismissed with prejudice and without leave to amend to the extent that it asserts a claim against Tyler for derogatory comments. Section 1983 is not designed to remedy harassment or verbal abuse. See Alnutt v. Cleary, 913 F. Supp. 160, 165-66 (W.D.N.Y. 1996) (citations omitted). Accordingly, mere allegations of verbal abuse do not rise to the level of a constitutional violation and are not cognizable under 42 U.S.C. § 1983. See Moncrieffe v. Witbeck, No. 97-CV-253, 2000 WL 949457, at *3 (N.D.N.Y. June 29, 2000) (Mordue, J.) (allegations that corrections officer laughed at inmate not actionable under section 1983) (citation omitted); see also Carpio v. Walker, No. Civ.A.95CV1502, 1997 WL 642543, at *6 (N.D.N.Y. Oct. 15, 1997) (Pooler, J. and DiBianco, M.J.) (“verbal harassment alone, unaccompanied by any injury, no matter how inappropriate, unprofessional, or reprehensible it might seem, does not rise to the level of an Eighth Amendment violation”). *14 Parson's derogatory comments claim should not proceed. The Complaint alleges that Tyler “announced to the A-Block inmates” at the Cortland County Jail that parson “was getting raped in Auburn and that's why he's back.” (Dkt. 1, at 103). Parson further alleges that Tyler declared that “[y]ou were too pussy to fight Frank last time you were here.” (Id.). According to Parson, Tyler's purported comments/statements “should offend society's sense of decency” and that “this is an intolerable practice in modern society.” (Id). While Defendant Tyler's comments, as alleged, may be wholly inappropriate, they do not give rise to a cognizable claim under Section 1983 and any purported claim arising therefrom should be dismissed with prejudice and without leave to amend. M. Sgt. Clark The Court cannot determine based on the allegations in the Complaint whether Parson was a pre-trial detainee or incarcerated individual at the time his claim for excessive force against Clark accrued. So the Court will analyze Parson's claim under the Eighth and Fourteenth Amendments. In either scenario, the Court recommends that Parson's claim against Clark for excessive force arising under the Eighth or Fourteenth Amendments survive sua sponte review and require a response. 5 “Pepper spray can be considered objective excessive force.” Celestin v. Angeletta, No. 19-CV-1887, 2021 WL 1062344, at *4 (S.D.N.Y. Mar. 19, 2021). Fourteenth Amendment excessive-force claims require force that is either “more than de minimis” or “repugnant to the conscience of mankind.” United States v. Walsh, 194 F.3d 37, 48 (2d Cir. 1999) (citation and quotation marks omitted). “Even a single burst of chemical spray can constitute more than a de minimis use of force.” Urena v. City of New York, No. 22-CV-4679, 2024 WL, 4149182, *5 (S.D.N.Y. Sep. 10, 2024). The “infliction of pepper spray” may have a “variety of incapacitating and painful effects, and [thus], its use constitutes a significant degree of force.” Tracy v. Freshwater, 623 F.3d 90, 98 (2d Cir. 2010). The Complaint alleges that on November 21, 2022, Clark ordered an unidentified corrections officer to open Parson's cell. Clark entered Parson's cell with his “hands up to fight” asking Parson, “You wanna go?” (Dkt. 1, at 97). Parson “started swinging” and then “immediately layed down on [his] chest to be handcuffed.” (Id.). Once handcuffed, Parson alleges that Clark “ordered C.O. Johnston to pepper spray[him].” (Id.). Hesitating, Johnston asked “[y]ou want me to spray him?” and Clark responded “[y]eah, spray him.” (Id.). The Complaint plausibly alleges that Clark personally directed Johnston to pepper spray Parson knowing that Parson was handcuffed and the use of the pepper spray did not serve any legitimate penological purpose. “A defendant who plans or directs an unreasonable use of force is liable for the resulting constitutional violation as a direct participant.” Terebesi v. Torreso, 764 F.3d 217, 234 (2d Cir. 2014). “In this Circuit, a ‘direct participant’ includes a person who Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 249 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 authorizes, orders, or helps others to do the unlawful acts, even if he or she does not commit the acts personally.” Id. (quotation omitted); see also Campbell v. City of Yonkers, No. 19-CV-2117, 2023 WL 4867459, at *9 (S.D.N.Y. July 31, 2023). M. C.O. Johnston The Court cannot determine based on the allegations in the Complaint whether Parson was a pre-trial detainee or incarcerated individual at the time his claim for excessive force against Johnston accrued. So the Court will analyze Parson's claim under the Eighth and Fourteenth Amendments. In either scenario, the Court recommends that Parson's claim against Johnston for excessive force arising under the Eighth or Fourteenth Amendments survive sua sponte review and require a response. (Complaint, Dkt. 1, at 97). 6 N. C.O. Jobson 7 *15 The Court recommends that the Complaint as to Defendant Jobson be dismissed without prejudice and with leave to amend. “To establish a defendant's individual liability in a suit brought under [42 U.S.C.] § 1983, a plaintiff must show, [among other things], the defendant's personal involvement in the alleged constitutional deprivation.” Morabito v. New York, 803 F. App'x. 463, 466 (2d Cir. 2023) (cleaned up). “Pursuant to this requirement, a Section 1983 plaintiff must allege a tangible connection between the acts of the defendant and the injuries suffered.” Keyes v. Venettozzi, No. 9:18-CV-0372 (GTS/DJS), 2022 WL 991402, at *6 (N.D.N.Y. Mar. 31, 2022) (quotation and internal quotation marks omitted). In other words, “the actions or omissions attributable to each defendant must be the proximate cause of the injuries and consequent damages that the plaintiff sustained.” Durr v. Slator, 558 F. Supp. 3d 1, 20 (N.D.N.Y. 2021) (citations omitted). Parson has not plausibly alleged Jobson's personal involvement. According to Parson, Jobson's report notes that “Neely stated that he did not get anything on him and that he was ok.” (Complaint, Dkt. 1, at 80). The Complaint further alleges that Judge Walsh did not allow Parson to call Jobson “as a witness and [the] ADA did not call her.” (Id.). Beyond that, the Complaint is devoid of any allegations suggesting that Jobson was personally involved in any deprivation of Parson's constitutional rights. The Court therefore recommends that the Complaint be dismissed against Defendant Jobson without prejudice and with leave to amend. O. Nurse Christine – Jane Doe #46 Parson alleges that because of his situation in Cortland County, he “requested sleeping pills from nurse (Christine?) Jane [D]oe named in this claim that I was taking to get though the nights.” (Compl., Dkt. 1, at 92). Parson further claims that “[c]ome to find out the sleeping pills were actually psyche meds that I immediately stop taking once I found out by Auburn Correctional Facility nurses.” (Id.). As an initial matter, the Court is unable to discern whether Parson was a pre-trial detainee or an incarcerated individual at the time of the event alleged in the Complaint. “To state an Eighth Amendment deliberate-indifference-to- medical-needs claim, incarcerated persons “must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 106 (1976). This standard “includes both subjective and objective components.” Mallet v. New York State Dep't of Corr. & Cmty. Supervision, 126 F.4th 125, 132 (2d Cir. 2025) (quotation omitted). The objective prong is satisfied when an incarcerated person plausibly alleges the alleged deprivation is sufficiently serious. See Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). “There is no single metric” to determine whether a medical condition is sufficiently serious. Mallet, 126 F.4th at 132. To be a sufficiently serious medical condition, the condition must be one “of urgency” and one that “may result in degeneration or extreme pain, significantly affect[ ] daily activities,” or the condition “involves chronic and substantial pain.” Id. (quotations omitted). “A serious medical need can also” exist where the “failure to treat” an incarcerated person's “condition” results “in further significant injury or the unnecessary and wanton infliction of pain.” Webster v. Fisher, 694 F. Supp. 2d 163, 191 (N.D.N.Y. 2010). But “not every lapse in prison medical care will rise to the level of a constitutional violation.” Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003). *16 To satisfy the subjective prong, an incarcerated person must show that prison officials “acted with a sufficiently culpable mind.” Mallet, 126 F.4th at 132 (cleaned up). The act, or omission, must show that the prison officials consciously disregarded a substantial risk of serious harm. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). In simpler Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 250 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 terms, plaintiffs must show a defendant acted with a mental state like criminal recklessness. Id at 839-40. Conversely, if Parson was confined as a pretrial detainee at the time he was administered he “psyche med,” his claims are governed by the Due Process Clause of the Fourteenth Amendment, rather than the Cruel and Unusual Punishments Clause of the Eighth Amendment. See Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (citation omitted). “A pretrial detainee may establish a § 1983 claim for allegedly unconstitutional conditions of confinement by showing that the officers acted with deliberate indifference to the challenged conditions.” Darnell, 849 F.3d at 29. Such a claim is typically analyzed under a two-pronged standard. First, the pretrial detainee must satisfy the “objective prong” showing that the conditions were “sufficiently serious” as to constitute objective deprivations of constitutional rights. Id. at 29. Second, the pretrial detainee must satisfy the “subjective prong” by showing that the officer acted with deliberate indifference to the challenged conditions. Id. The objective prong of the deliberate indifference claim is the same as a convicted prisoner under the Eighth Amendment. Id. at 30. To satisfy the objective prong, “the [pre-trial detainee] must show that the conditions, either alone or in combination, pose an unreasonable risk of serious damage to his health,’ which includes the risk of serious damage to ‘physical and mental soundness.” Id. To satisfy the mens rea prong, a pretrial detainee must allege facts showing that “the defendant official acted intentionally to impose the alleged condition or recklessly failed to act with reasonable care to mitigate the risk that the condition posed to the pretrial detainee even though the defendant-official knew, or should have known, that the condition posed an excessive risk to health or safety.” Id. at 35; see also Bruno v. City of Schenectady, 727 F. App'x 717 (2d Cir. 2018). Parson plausibly alleges that Nurse Christine (Jane Doe #46) violated his constitutional rights when she administered the “wrong medication” by giving “psyche meds” rather than a sleeping pill, as he requested. (Complaint, Dkt. 1, at pg. 92). The Complaint, however, lacks any facts plausibly suggesting that Nurse Christine (Jane Doe #46) acted with a culpable state of mind. As pleaded, the allegations against Nurse Christine (Jane Doe #46) amount to a disagreement with the nature of treatment and not a violation of Parson's constitutional rights which is not actionable. See Wright v. Conway, No. 05-CV-6723, 584 F.Supp.2d 604, 607 (W.D.N.Y. Nov. 5, 2008) (“[the plaintiff's] complaints demonstrate no more than his personal dissatisfaction with the level of care that he received, and these claims must therefore be dismissed.”). Even if Nurse Christine's (Jane Doe #46) decisions surrounding Plaintiff's treatment implicate medical malpractice or negligence, her actions and/or inactions do not give rise to either an Eighth or Fourteenth Amendment violation. See Hendricks v. Coughlin, 942 F.2d 109, 113 (2d Cir. 1991) (holding that proof of negligence will not give rise to a constitutional violation); see also McNamee v. Schoharie County Jail, 06-CV-1364 (LED/GHL), 2008 WL 686796, at *6-7 (N.D.N.Y. March 10, 2008). *17 For these reasons, the Court recommends that the Complaint be dismissed against Nurse Christine (Jane Doe #46) without prejudice and with leave to amend. P. C.O. John Doe – Auburn C.F. The Court recommends that Parson's claim that John Doe Defendant #47, a Corrections Officer at Auburn Correctional Facility, (“Auburn C.F.”) who allegedly “sexually molested him” be dismissed without prejudice and with leave to amend. (Complaint, Dkt. 1, at pg. 18). Incarcerated individuals alleging Eighth Amendment sexual abuse claims must allege both subjective and objective elements. See Crawford v. Cuomo, 796 F.3d 252, 257 (2d Cir. 2015). Namely, the incarcerated person must plausibly allege that the “officer's intentional contact with an inmate's genitalia or other intimate area ... serves no penological purpose and is undertaken with the intent to gratify the officer's sexual desire or humiliate the inmate[.]” Crawford, 796 F.3d at 257. A court's principal inquiry “is whether the contact is incidental to legitimate official duties, such as a justifiable pat frisk or strip search, or by contrast whether it is taken to arouse or gratify the officer or humiliate the inmate.” Id. at 257-58. A pretrial detainee's claim of sexual abuse against a correctional officer is governed by the due process clause of the Fourteenth Amendment, and not by the Eighth Amendment, as “pretrial detainees have not been convicted of a crime and thus may not be punished in any manner —neither cruelly and unusually nor otherwise.” Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017) (internal quotation marks, citations, and alterations omitted). However, courts Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 251 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 in this Circuit have noted that it is not yet clear whether a pretrial detainee's sexual abuse claim under the Fourteenth Amendment—as opposed to an excessive force claim—is subject to an objective or subjective mens rea requirement. See, Lewis v. Huebner, No. 17-CV-8101, 2020 WL 1244254, at *9 (S.D.N.Y. Mar. 16, 2020) (“[I]t is presently unclear whether both prongs required for Eighth Amendment sexual abuse claims are also required for claims of sexual abuse under the Fourteenth Amendment.”) (citation and internal quotation marks omitted). The Complaint is vague as to whether Parson was a pretrial detainee or an inmate at the time of the alleged occurrence making it difficult for the Court to determine whether his claim is subject to Eighth or Fourteenth Amendment scrutiny. Further complicating the Court's analysis is Parson's complete failure to provide any factual support for his conclusory assertion that he was “sexually molested.” (Complaint, Dkt. 1, at pg. 18). Parson's lack of factual support also runs afoul Fed. R. Civ. P. 8, making it difficult for John Doe Defendant #47, once identified, to have sufficient notice of the claims against him. The Court therefore recommends District Court dismiss the claims against John Doe Defendant #47 without prejudice and with leave to amend. Q. John Doe #49 – Elmira C.F. The Court recommends that Parson's claim against the individual who allegedly destroyed his property be dismissed. Parson alleges that a lieutenant at the Elmira Correctional Facility “sprayed [a] fire hose on my neighbor and flooding much of my cell destroying much of my legal documents.” (Dkt. 1, at 42). The Court construes Parson's allegations as asserting a claim for deprivation of property. That claim cannot lie in federal court if the state court provides an adequate remedy for the deprivation of that property. See Hudson v. Palmer, 468 U.S. 517, 533 (1984); see also Marino v. Ameruso, 837 F.2d 45, 47 (2d Cir. 1988) (citations omitted). New York provides such a remedy in § 9 of the New York Court of Claims Act which allows an inmate to pursue a claim for deprivation of property against the State of New York in the New York Court of Claims. See Forman v. Coughlin, No. 93CV-8412 (LAK), 1994 WL 708150, at *1 (S.D.N.Y. Dec. 20, 1994) (“New York has adequate remedies [for deprivation of property claims] via recourse to the New York Court of Claims. The Constitution requires nothing further.”). Because New York State provides an adequate post-deprivation remedy for the purported destruction of his property, Parson may pursue his claim in state court even if he was a pre-trial detainee at the time of the alleged loss. See Ortiz v. City of New York, No. 12-CV-3118, 2012 WL 6200397, at *7 (S.D.N.Y. Dec. 12, 2012) (pre-trial detainee could pursue his claim for deprivation of property through the New York Court of Claims and not under § 1983). *18 The Court therefore recommends that the Complaint be dismissed against John Doe – Elmira C.F. (Defendant # 49) without prejudice and without leave to amend. See, e.g., Green v. Niles, No. 11-CV-1349, 2012 WL 987473, at *6 (S.D.N.Y. Mar. 23, 2012) (dismissing an inmate's claim because “a prison's loss of an inmate[’s] property ... will not support a due process claim redressable under § 1983 if adequate state post-deprivation remedies are available” (citation and quotation marks omitted)). R. Fed. R. Civ. P. 8, 10, 18 and 20 1. Rule 8 See Section IV(E) above for a discussion of Fed. R. Civ. P. 8. 2. Rule 10 Fed. R. Civ. P. 10 states in relevant part that “[a] party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances .... If doing so would promote clarity, each claim founded on a separate transaction or occurrence — and each defense other than a denial — must be stated in a separate count or defense.” 3. Rules 18 and 20 Fed. R. Civ. P. 18 and 20 govern joinder of claims and parties, respectively. Rule 18 permits a plaintiff to join as many claims as he has against a particular defendant. See Fed. R. Civ. P. 18(a). However, under Fed. R. Civ. P. 20, a plaintiff may not pursue unrelated claims against multiple defendants. See Fed. R. Civ. P. 20(a)(2). Fed. R. Civ. P. 20(a)(2) states: Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 252 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 [p]ersons ... may be joined in one action as defendants if: (A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all defendants will arise in the action. “Although courts have interpreted Rule 20(a) liberally to allow related claims to be tried within a single proceeding, ‘the mere allegation that Plaintiff was injured by all Defendants is not sufficient to join unrelated parties as defendants in the same lawsuit pursuant to Rule 20(a).’ ” Clay v. Doe, No. 20-CV-7692, 2020 WL 6151436, at *1 (S.D.N.Y. Oct. 20, 2020) (citation omitted). Parson's Complaint runs afoul of Fed. R. Civ. P. 8, 10, 18, and 20. First, the Complaint lacks a short and plain statement showing that Parson is entitled to relief. Second, Parson's failure to adhere to the pleading rules and instead, provide the Court with 113 pages of prose, makes the Court's review of the Complaint a monumental and arduous task. For example, Parson's inartful pleading makes it difficult for the Court to determine whether he was a pre-trial detainee or an incarcerated individual at the time his alleged claims accrued. Third, Parson's multitude of claims against 53 Defendants alleged to have occurred in multiple courthouses and correctional facilities over an extended period is a blatant violation of Fed. R. Civ. P. 10 and 20 and weaves a tangled web that the remaining Defendants should not be entangled in. See Smith v. Goord, No. 04-CV-6432, 2006 WL 2850597, at *3-4 (W.D.N.Y. Sep. 22, 2006) (recommending disallowing joinder of claims against defendants at different correctional facilities where there was no suggestion that the original defendants were involved in the actions taken against the plaintiff in a different facility more than one year later), report and recommendation adopted by 2007 WL 496371 (W.D.N.Y. Feb. 12, 2007); see also Webb v. Maldonaldo, No. 3:13-CV-144 (RNC), 2013 WL 3243135, at *3 (D. Conn. June 26, 2013) (“Unrelated claims against different defendants belong in different suits ... to prevent the sort of morass” created by a complaint with more than twenty defendants and countless unrelated claims.”) (quotation and citation omitted). *19 Because of Parsons’ failure to comply with Fed. R. Civ. P. 8, 10, 18, and 20, the Court recommends dismissing the Complaint. See Griffith v. New York State, No. 5:23-CV-1266 (DNH/ML), 2024 WL 1641587, at *4 (N.D.N.Y. Mar. 20, 2024) (recommending “dismissal of the Complaint because it is not acceptable under Rules 8 and 10 of the Fed. R. Civ. P. and because Plaintiff's Section 1983 claim or claims against Defendant are entirely unclear”), report and recommendation adopted, 2024 WL 1639856 (N.D.N.Y. Apr. 16, 2024). However, the Court further recommends that Parson be allowed to file an amended pleading and, if the District Court allows, commence additional actions where each action asserts claims that arise out of the same transactions or occurrences, limited to defendants allegedly involved in the same, with respect to his claims against the following Defendants, provided he complies with Fed. R. Civ. P. 8 and 10, 18, and 20: 1. C.O. Stacey, C.O. Traphagen, C.O. Haskins, C.O. Dorsett, C.O., Gleason, C.O. Reynolds, C.O. Fosbrook, C.O. Barhans, S. Delucia, D. Gage, N. Hawks, C.O. Smith, C.O. Ken Eaton, C.O. Nater, C.O. Barber, and C.O. Cavanagh; 2. Nicholas Lynch and Mark Helms; 3. Cortland County Jail Officials (Dkt. 1, at 89) and “Each Correction Officer who wrote ticket for not closing gate” (Dkt. 1, at 96); 4. Adam Raymond and Thomas Kiehle; 5. J. Tyler only as to the failure to protect claim; 6. Sgt. Clark; 7. C.O. Johnston; 8. C.O. Jobson; 8 9. Nurse Christine – Jane Doe #46; 10. C.O. John Doe – Auburn C.F.; and 11. Cortland County To be clear, Parson may not pursue unrelated claims against unrelated defendants in a single action. For example: Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 253 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 17 a. Parson may pursue his claims against Sgt. Clark and C.O. Johnston in the same action if the claims against them arise from the same nucleus of operative facts. If, however, Parson's claim against them emanates from different facts, he may not sue them in a single action – Parson would be required to commence separate actions; b. Parson may not pursue claims against C.O. Stacey, C.O. Traphagen, C.O. Haskins, C.O. Dorsett, C.O., Gleason, C.O. Reynolds, C.O. Fosbrook, C.O. Barhans, S. Delucia, D. Gage, N. Hawks, C.O. Smith, C.O. Ken Eaton, C.O. Nater, C.O. Barber, and C.O. Cavanagh if his claims against them arise from different facts. It might be the case that Parson's claims against several of the defendants in this subparagraph arise from the same operative facts in which case Parson could sue them in a single action. V. OPPORTUNITY TO AMEND Generally, before the court dismisses a pro se complaint or any part of the complaint sua sponte, the court should afford a plaintiff the opportunity to amend at least once; however, leave to re-plead may be denied where any amendment would be futile. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993). Futility is present when the problem with plaintiff's causes of action is substantive such that better pleading will not cure it. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (citation omitted). Here, the Court recommends that Parson be granted leave to file an amended pleading and commence additional actions consistent with Section IV(S) above. Should the District Court allow Parson to amend the Complaint, the operative pleading must clearly be labeled “Amended Complaint” and bear the docket number 5:25-CV-956 (AJB/MJK). Parson is strongly encouraged to read and comply with the prisoner pro se handbook, a copy of which the Clerk is directed to send to him. The amended pleading, and any additional pleadings, must be signed 9 and otherwise comply with Fed. R. Civ. P. 8, 10, 18, and 20 as noted herein. *20 Parson must set forth all claims he intends to assert and plausibly allege that a case or controversy exists between her and any Defendants by name over which this Court has jurisdiction. Parson must clearly set forth facts giving rise to his purported claims in separate and consecutively numbered paragraphs. The amended pleading must be a wholly integrated and a complete pleading that does not rely upon, or incorporate by reference, any pleading or document previously filed with the Court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) (“It is well established that an amended complaint ordinarily supersedes the original and renders it of no legal effect.” (internal quotation marks omitted)). Piecemeal pleadings are not permitted. See L.R. 15.1. VI. CONCLUSION WHEREFORE, based on the findings above, it is ORDERED, that Parson's motion to proceed in forma pauperis (Dkt. 6) is GRANTED, and it is further RECOMMENDED, that the Complaint be DISMISSED against the Judges, including Judge Alexander, WITH PREJUDICE AND WITHOUT LEAVE TO AMEND because any amendment would be futile, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against Defendant Michelman WITH PREJUDICE AND WITHOUT LEAVE TO AMEND because any amendment would be futile, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against Defendants Simser, Healy, Raju, Perfetti, and Kyles WITH PREJUDICE AND WITHOUT LEAVE TO AMEND because any amendment would be futile, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against Defendant Monty WITH PREJUDICE AND WITHOUT LEAVE TO AMEND because any amendment would be futile, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against Defendants C.O. Stacey, C.O. Traphagen, C.O. Haskins, C.O. Dorsett, C.O., Gleason, C.O. Reynolds, C.O. Fosbrook, C.O. Barhans, S. Delucia, D. Gage, N. Hawks, C.O. Smith, C.O. Ken Eaton, C.O. Nater, C.O. Barber, and C.O. Cavanagh WITHOUT PREJUDICE AND WITH LEAVE TO AMEND, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against Defendants Fenchel, Jarrod Smith, Melissa Smith, and Jones WITH PREJUDICE AND WITHOUT LEAVE TO AMEND because any amendment would be futile, and it is hereby further Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 254 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 18 RECOMMENDED, that the Complaint be DISMISED against Defendant Cute WITH PREJUDICE AND WITHOUT LEAVE TO AMEND because any amendment would be futile, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against Defendants Lynch and Helms WITHOUT PREJUDICE AND WITH LEAVE TO AMEND, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against Cortland County WITHOUT PREJUDICE AND WITH LEAVE TO AMEND, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against the “Cortland County Jail Officials” and “[e]ach Correction[s] Officer who wrote [parson] a ticket for not closing [his] gate” WITHOUT PREJUDICE AND WITH LEAVE TO AMEND, and it hereby further RECOMMENDED, that Parson's claim against Defendants Raymond and Kiehle proceed and that a response be required, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against Defendant Tyler WITHOUT PREJUDICE AND WITH LEAVE TO AMEND, and it is hereby further RECOMMENDED, that Parson's claim against Defendant Clark proceed and that a response be required, and it is hereby further RECOMMENDED, that Parson's claim against Defendant Johnston proceed and that a response be required, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against Defendant Jobson WITHOUT PREJUDICE AND WITH LEAVE TO AMEND, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against Defendant Nurse Christine (Jane Doe #46) WITHOUT PREJUDICE AND WITH LEAVE TO AMEND, and it is hereby further *21 RECOMMENDED, that the Complaint be DISMISSED against John Doe (Defendant #47) who allegedly “sexually molested [Parson]” WITHOUT PREJUDICE AD WITH LEAVE TO AMEND, and it is hereby further RECOMMENDED, that the Complaint be DISMISSED against John Doe – Elmira C.F. (Defendant #49) WITHOUT PREJUDICE AND WITHOUT LEAVE TO AMEND, and it is further RECOMMENDED, that the Complaint be DISMISSED in its entirety WITHOUT PREJUDICE AND WITH LEAVE TO AMEND for failure to comply with Fed. R. Civ. P. 8, 10, 18, and 20 and that Parson be allowed to file an amended pleading and, if the District Court allows, commence additional actions where each action asserts claims that arise out of the same transactions or occurrences, limited to defendants allegedly involved in the same, with respect to his claims against the following Defendants, provided he complies with Fed. R. Civ. P. 8 and 10, 18, and 20: 1. C.O. Stacey, C.O. Traphagen, C.O. Haskins, C.O. Dorsett, C.O., Gleason, C.O. Reynolds, C.O. Fosbrook, C.O. Barhans, S. Delucia, D. Gage, N. Hawks, C.O. Smith, C.O. Ken Eaton, C.O. Nater, C.O. Barber, and C.O. Cavanagh; 2. Nicholas Lynch and Mark Helms; 3. Cortland County Jail Officials (Dkt. 1, at 89) and “Each Correction Officer who wrote ticket for not closing gate” (Dkt. 1, at 96); 4. Adam Raymond and Thomas Kiehle; 5. J. Tyler only as to the failure to protect claim; 6. Sgt. Clark; 7. C.O. Johnston; 8. C.O. Jobson; 9. Nurse Christine – Jane Doe #46; 10. C.O. John Doe – Auburn C.F.; 11. Cortland County; and it is further ORDERED, that the Clerk provide Parson with a copy of this Order and Report-Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 255 of 300
Parson v. Campbell, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 19 In accordance with 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) 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 DAYS WILL PRECLUDE APPELLATE REVIEW. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec. of Health & Human Servs., 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 Slip Copy, 2025 WL 3514155 Footnotes 1 The Complaint refers to Judge Alexander who is not listed as a party to this action. But even if the District Court finds that Judge Alexander is not entitled to the privileges afforded by the Eleventh Amendment and/ or judicial immunity, the Complaint should nevertheless be dismissed against him under Fed. R. Civ. P. 10. 2 Taylor v. Kavanagh, 640 F.2d 450, 452 (2d Cir. 1981) (citing Lee v. Williams, 617 F.2d 320, 321-22 (2d Cir. 1980)); Imbler, 424 U.S. at 431 n. 34; Burns v. Reed, 500 U.S. 478, 490 (1991); Dory, 25 F.3d at 83. 3 To the extent that Monty was acting in her capacity as an Assistant District Attorney, she would be immune from suit for the reasons more fully articulated in Section IV(D) above. 4 The fact that the Court is recommending that Parson's claim for excessive force against Defendants Raymond and Kiehle survive sua sponte review does not mean that it will survive a properly filed dispositive motion. 5 See the Court's discussion regarding Defendants Raymond and Kiehle for the standard of an excessive force claim arising under the Eighth and Fourteenth Amendments. 6 See the Court's discussion regarding Defendants Raymond and Kiehle for the standard of an excessive force claim arising under the Eighth and Fourteenth Amendments. 7 Defendant Jobson is referred to as “Jobston” in the Complaint. (Dkt. 1, at 80). The Court will assume that there is a typographical error in the spelling of this Defendant's last name. 8 As noted in footnote 6, C.O. Jonson is referred to as C.O. “Jobston” in the Complaint. The Court requests that Parson determine, if possible, which spelling is correct. 9 Rule 11(a) of the Federal Rules of Civil Procedure requires that “[e]very pleading ... must be signed ... by a party personally if the party is unrepresented.” Fed. R. Civ. P. 11(a). Moreover, Rule 10.1(c)(2) of the Local Rules of Practice of this District requires that all documents submitted to the Court include the original signature of the attorney or the pro se litigant. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 256 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Distinguished by Foskey v. Paige, N.D.N.Y., March 4, 2024 2017 WL 2791063 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Edy RODRIGUEZ, Plaintiff, v. J. CROSS, Sergeant, Clinton Correctional Facility; et al., Defendants. No. 15-CV-1079 (GTS/CFH) | Signed 05/09/2017 Attorneys and Law Firms Edy Rodriguez, East Elmhurst, NY, pro se. Ryan E. Manley, Harris, Conway & Donovan, Christopher J. Hummel, New York State Attorney General, Albany, NY, for Defendants. REPORT-RECOMMENDATION AND ORDER 1 Christian F. Hummel, U.S. Magistrate Judge *1 Plaintiff pro se Edy Rodriguez (“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, alleging that Sergeant (“Sgt.”) J. Cross, Sgt. R. Furnia, Correction Officer (“C.O.”) G. Falcon, and C.O. J. Roberts (collectively “Defendants”) violated his constitutional rights under the First and Eighth Amendments. Dkt. No. 1 (“Compl.”). 2 Presently pending is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56(a) for plaintiff's failure to exhaust administrative remedies before commencing this action. Dkt. No. 26. Plaintiff filed a response in opposition to defendants' motion. Dkt. No. 34. Defendants filed a reply. Dkt. No. 39. I. Background The facts are reviewed in the light most favorable to plaintiff as the non-moving party. See subsection II(A) infra. At the relevant times giving rise to plaintiff's claims, plaintiff was an inmate incarcerated at Clinton Correctional Facility (“Clinton”). On July 10, 2014, plaintiff wrote a letter to Sgt. Cross “complaining about being harassed” by staff at Clinton. Compl. at 4. Plaintiff further alleges that he was taken out of his cell on July 14, 2014, brought to the second floor of the facility's hospital, and subjected to a “beating” by defendants. Compl. at 4-5. Sgt. Cross grabbed him by the hair; Sgt. Furnia punched him; and C.O. Falcon and C.O. Roberts punched him in the face, back, and neck. Id. at 4. Plaintiff alleges “each one of the blows” he suffered was from the named defendants, as well as other officers he cannot identify by name. Id. at 5-6. After the alleged incident, plaintiff was seen by a nurse with “about ten” officers present in the room, where he admits “having no choice,” but to tell the nurse that officers had just beat him up. See Affirmation of Christopher J. Hummel (“Hummel Aff.”), Dkt. No. 26-1, Exhibit (“Exh.”) A 3 at 59-60. 4 While at Clinton, plaintiff filed five grievances. See Declaration of Christine Gregory (“Gregory Decl.”), Dkt. No. 26-3 Exh. A at 6. Only one grievance was appealed. Declaration of Jeffrey Hale (“Hale Decl.”), Dkt. No. 26-2 ¶¶ 12-13. The subject matter of the single appealed grievance does not concern the matter before the Court. Id. ¶ 12. The only grievance filed that is pertinent to the pending motion was filed on July 29, 2014. See Gregory Decl. Exh. B at 8. This grievance alleges that plaintiff suffered “an assault by (C.O.)” and, following the assault, did not receive appropriate medical care. Id. The investigation into the July 29, 2014 grievance concluded that plaintiff saw his medical provider, and medicine was given to him without any further action. Id. at 10. The investigation did not mention anything about an assault. Id. *2 Plaintiff alleges that he filed a grievance regarding the incidents described in his complaint, but an unidentified Sergeant destroyed the grievance. Compl. at 2. He also alleges that he was beaten by correction staff for filing the grievance. Id. Plaintiff also states that he filed a handwritten grievance (not on a grievance form) on July 19, 2014, regarding the July 14, 2014 incident. See Hummel Aff. Exh. A at 93. Plaintiff Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 257 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 alleges that he sent a copy of this grievance to his mother and instructed her to send it directly to Clinton “[f]rom outside.” Id. at 94. Defendants have no record of this grievance being filed. See Gregory Decl. Exh. A at 6. Plaintiff never inquired further about the July 19, 2014 grievance, but maintains that he has handwritten copies of the grievance since he did not have access to carbon paper when he originally drafted this grievance. See Hummel Aff. Exh. A at 94-95, 96-97. The July 19, 2014 grievance was drafted while plaintiff was in keeplock. Id. at 93. Plaintiff further alleges, in his response to defendants' motion for summary judgment, that defendants have total control over facility mail and any failure to exhaust administrative remedies occurred because defendants strategically removed grievances from the mailbox to cover up their use of excessive force against plaintiff. See Dkt. No. 34 at 4. Plaintiff further alleges a general belief that there is a pattern of prison officials threatening and retaliating against inmates for filing grievances, thus making administrative remedies unavailable. Id. at 6. Lastly, plaintiff alleges that there is an “unwritten posture” at Clinton where inmates are not given grievance forms unless they provide a clear description of their complaint, or the complaint does not involve staff misconduct. Id. at 8. II. Discussion 5 Plaintiff alleges that defendants retaliated against him in violation of the First Amendment, used excessive force against him in violation of the Eighth Amendment, and violated his Due Process rights under the First and Fourteenth Amendments. See Compl. at 7. Defendants argue that plaintiff's complaint should be dismissed in its entirety as plaintiff failed to exhaust his administrative remedies with respect to the causes of action outlined in the Complaint. See Defendants' Memorandum of Law, Dkt. No. 26-5 at 3. A. Legal Standard For Motions Pursuant to Fed. R. Civ. P. 56(a) “A court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). The moving party has the burden of showing the absence of disputed material facts by providing the Court with portions of “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” which support the motion. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A fact is material if it may affect the outcome of the case as determined by substantive law, such that “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “In determining whether summary judgment is appropriate, [the Court] will resolve all ambiguities and draw all reasonable inferences against the moving party.” Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997). To avoid summary judgment, a non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Carey v. Crescenzi, 923 F.2d 18, 19 (2d Cir. 1991) (quoting Matsushita Elec. Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). A non-moving party must support such assertions by evidence showing the existence of a genuine issue of material fact. Carey, 923 F.2d at 19. “When no rational jury could find in favor of the non-moving party because the evidence to support is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper.” Gallo v. Prudential Services, Ltd. Partnership, 22 F.3d, 1219, 1224 (2d Cir. 1994). *3 Where, as here, a party seeks judgment against a pro se litigant, a court must afford the non-movant special solicitude. See Triestman v. Fed. 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). B. Exhaustion of Administrative Remedies Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 258 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 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.’ ” Mauldin v. Kiff, No. 11-CV-107- A, 2014 WL 2708434, at *4 (W.D.N.Y. June 16, 2014) (quoting 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. Porter, 534 U.S. 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). Although 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) (citation omitted). Until recently, courts in this District followed a three-part test established by the Second Circuit in Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004). Under the test established in Hemphill, a plaintiff's failure to exhaust could be excused if a plaintiff established that his or her failure to exhaust was justified by “special circumstances.” Id. However, the Supreme Court recently held that “[c]ourts may not engraft an unwritten ‘special circumstances’ exception onto the PLRA's exhaustion requirement.” Ross v. Blake, 136 S. Ct. 1850, 1862 (2016). As such, the special circumstances exception previously promulgated by the Second Circuit in Hemphill is no longer consistent with the statutory requirements of the PLRA. Williams v. Priatno, 829 F.3d 118, 123 (2d Cir. 2016). *4 Although the Supreme Court's decision in Ross eliminates the “special circumstances” exception promulgated by Hemphill, courts must still consider the PLRA's “textual exception to mandatory exhaustion.” Ross, 136 S. Ct. at 1858. Under this exception, courts must determine whether administrative remedies were “available” to a prisoner. Id. The Supreme Court identified three circumstances where administrative remedies may be unavailable to a prisoner. 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. at 1859 (citing Booth v. Churner, 532 U.S. 731, 736, 738 (2001)). “Next, an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Lastly, administrative remedies are unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 1860. Here, there is no genuine dispute that at all relevant times, DOCCS had in place a three-step inmate grievance program. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5. First, the inmate must file a complaint with an inmate grievance program (“IGP”) clerk within twenty-one days of the alleged incident. 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 Inmate Grievance Review Committee (“IGRC”) 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 the Central Office Review Committee (“CORC”) within seven days after receipt of the superintendent's determination. Id. §§ 701.5(d)(i)-(ii). 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). 1. Application First, the Court will address whether there is any genuine dispute that plaintiff failed to exhaust his administrative remedies. Courts in the Second Circuit have consistently held that any informal resolutions or relief outside of the administrative procedures do not satisfy exhaustion requirements. See, e.g., Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007) (holding that regardless of whether prison officials know of plaintiff's complaints in a “substantive sense,” procedural exhaustion of remedies must still occur); Ruggiero v. Cty. of Orange, 467 F.3d 170, 177-78 (2d Cir. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 259 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 2006); Perez v. City of N.Y., No. 14 CIV. 07502(LGS), 2015 WL 3652511, at *4 (S.D.N.Y. June 11, 2015) (“Plaintiff's allegation that he advised others of his grievance does not excuse his failure to exhaust the administrative process.”). Here, subsequent to the alleged events giving rise to the matter before the Court, plaintiff states he and family members contacted the Inspector General's Office to complain about prison conditions and concerns of plaintiff's safety. See Hummel Aff. Exh. A at 89, 90. Such correspondence does not satisfy exhaustion and falls outside of the grievance procedures. See Geer v. Chapman, No. 9:15-CV-952(GLS/ ATB), 2016 WL 6091699, at *5 (N.D.N.Y. Sept. 26, 2016), report and recommendation adopted, No. 9:15- CV-952 (GLS/ATB), 2016 WL 6090874 (N.D.N.Y. Oct. 18, 2016) (“It is well-settled that writing letters to prison officials, or other officials, is insufficient to properly exhaust administrative remedies.”); Salmon v. Bellinger, No. 9:14- CV-0827(LEK/DJS), 2016 WL 4411338, at *4 (N.D.N.Y. July 5, 2016), report and recommendation adopted by, No. 9:14-CV-0827(LEK/DJS), 2016 WL 4275733 (N.D.N.Y. Aug. 12, 2016) (holding that letters sent to the Inspector General do not satisfy exhaustion procedures). *5 After the alleged incident of excessive force, plaintiff was seen by a nurse in a room with “about ten” officers present, where he admits “having no choice” but to tell the nurse that the officers had beat him up. Hummel Aff. Exh. A at 59-60. Plaintiff alleges filing grievances on July 19, 2014 and July 29, 2014 that mention the assault. See id. at 93; Gregory Decl. Exh. B at 6, 8-10. Defendants state that there is no record of appeal on any grievances pertaining to the alleged assault. Gregory Decl. ¶ 15. While plaintiff's complaints were aired verbally and in writing, plaintiff failed to utilize the procedures required to exhaust administrative remedies. Timmons v. Schriro, No. 14-CV-6606(RJS), 2015 WL 3901637, at *3 (S.D.N.Y. June 23, 2015) (“[T]he law is well-settled that informal means of communicating and pursuing a grievance, even with senior prison officials, are not sufficient under the PLRA.”). Thus, there is no genuine dispute that plaintiff failed to exhaust administrative remedies. As a result, the Court must determine whether administrative remedies were in fact available to plaintiff. See Ross, 136 S. Ct. at 1858 (“An inmate ... must exhaust available remedies, but need not exhaust unavailable ones”); Mena v. City of New York, No. 13-cv-2430(RJS), 2016 WL 3948100, at *4 (S.D.N.Y. July 19, 2016) (citing Ross, 136 S. Ct. at 1862) (“[T]he lone surviving exception to the PLRA's exhaustion requirement is that embedded in its text: that an inmate need only exhaust those administrative remedies that are ‘available’ to him.”). Plaintiff sets forth three factual arguments as to why administrative remedies were not available to him. First, plaintiff alleges that the grievance procedures were unavailable to him because he was denied access to paper and writing instruments. See Compl. at 3. Next, plaintiff alleges that he was physically beaten when he attempted to take steps to utilize the grievance process. Id. Lastly, plaintiff suggests that he never received a response to his grievance, his mail was tampered with, and his letters were not delivered. See Hummel Aff. Exh. A at 91-92, 94. a. Lack of Paper and Pen to Complete Grievance Procedures The third prong of Ross is triggered by plaintiff's argument that he was denied access to pen and paper, as it shows an alleged attempt to stop him from taking part in the grievance process. When a plaintiff-inmate asserts that a defendant-facility withheld pens, courts have granted summary judgment against a plaintiff when “the record does not show that “[p]laintiff indicated to prison officials that he needed a pen so he could file a grievance or that prison officials refused to provide him a pen for this purpose.” Mena v. City of N.Y., No. 12 CIV. 6838(GBD), 2013 WL 3580057, at *2 (S.D.N.Y. July 10, 2013). When an inmate argues that a correction officer denies him access to pen or paper, even assuming the allegations are true, courts examine whether the inmate was drafting other documents during the same time period, or whether they were able to access materials from other sources. See Williams v. Ramos, No. 13 CV 826(VLB), 2015 WL 864888, at *3 (S.D.N.Y. Feb. 9, 2015) (“It is unclear how plaintiff was able to submit [other] grievances if defendants took his pens and paper and threatened him ... Moreover, when defendants allegedly stole his pens and papers, plaintiff testified he was able to file grievances on his commissary sheet.”); Lahoz v. Orange Cty. Jail, No. 08 CIV. 4364(RWS), 2010 WL 1789907, at *3 (S.D.N.Y. Apr. 29, 2010) (stating that an inmate was not deprived of writing materials when he drafted a handwritten letter during the same time period as the grievance process). Here, the Court notes contradictory statements within the complaint pertaining to plaintiff's access to writing instruments or paper. When prompted as to why facts relating to the complaint were not presented in the grievance program, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 260 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 plaintiff asserts that he was denied a paper or pen. Compl. at 3. However, plaintiff also states that he wrote a grievance, the grievance was destroyed by a Sergeant, and he was beaten in retaliation for writing the grievance. See id. at 2. The only time plaintiff asserts that he was denied a paper and pen was when he was taken to the Special Housing Unit (“SHU”) 6 on July 14, 2014 after the alleged incident. See id. at 3; Hummel Aff. Exh. A at 68. In fact, records indicate that plaintiff filed grievances on July 19, July 29, August 4, and November 19 of that same year. 7 Gregory Decl. Exh. A at 6. Plaintiff does not allege any difficulties obtaining a pen and paper after the July 2014 SHU stay, but rather, admits having “a piece of paper that an inmate had and a pen” on at least one occasion. See id. at 94. *6 Lastly, in his response to defendants' motion for summary judgment, plaintiff alleges that there is an “unwritten posture” at Clinton where inmates are not given grievance forms unless they provide a clear description of their complaint, or if their complaint does not involve staff misconduct. Dkt. No. 34 at 8. Such general allegations without any factual support are insufficient to show that procedures were unavailable, coupled with the fact that, grievances can and have been submitted by plaintiff on plain paper. N.Y. COMP. CODES R. & REGS. tit. 7, § 701.5(a)(1) (“If this form is not readily available, a complaint may be submitted on plain paper.”); see Veloz v. N.Y., 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004), aff'd, 178 Fed.Appx. 39 (2d Cir. 2006) (granting summary judgment where plaintiff does not allege that any specific officer thwarted his efforts to timely file a grievance); Hummel Aff. Exh. A at 94. Even if the Court assumes that plaintiff was denied access to pen and paper while in the SHU, the grievances filed in July 2014 were filed within the twenty-one calendar days required, and his subsequent failure to exhaust administrative remedies regarding those grievances is unaffected by any denial of pen and paper that occurred in the past. Thus, the Court rejects plaintiff's argument as there is no genuine dispute of fact that administrative remedies were unavailable due a lack of writing instruments or paper. b. Allegation that Grievance Was Not Received and Mail Tampering Courts have long held that where an inmate does not receive a response to a written grievance, the inmate must appeal to the next level of review. See Khudan v. Lee, No. 12- cv-8147(RJS), 2015 WL 5544316, at *5 (S.D.N.Y. Sept. 17, 2015) (dismissing a plaintiff's complaint where plaintiff failed to appeal to the next level of review after not receiving a response to his filed grievance); see also Veloz v. New York, 339 F. Supp. 2d 505, 516 (S.D.N.Y. 2004), aff'd, 178 Fed.Appx. 39 (2d Cir. 2006) (“[P]laintiff's allegation that these particular grievances were misplaced or destroyed by correctional officers ultimately does not relieve him of the requirement to appeal these claims to the next level once it became clear to him that a response to his initial filing was not forthcoming.”). However, recent decisions by courts in the Second Circuit have addressed the availability of administrative remedies when an inmate's grievance is unfiled and unanswered. These cases have focused on the second prong of the Ross test, where a grievance process becomes unusable for an inmate. Ross, 136 S. Ct. at 1859. In Williams v. Priatno, the Second Circuit held that when an inmate's grievance is not filed, “the regulations plainly do not describe a mechanism for appealing a grievance.” See 829 F.3d at 126. Thus, “the process to appeal an unfiled and unanswered grievance is prohibitively opaque, such that no inmate could actually make use of it.” Id. The Williams ruling relied upon a scenario where an inmate is housed in a SHU and personally gives a grievance to a correction officer, as required by grievance procedures. Id. at 120-21. Additionally, adding to the “opaque” nature of the procedures, the plaintiff in Williams followed up when he did not receive a response after a week, but was subsequently transferred one week later without any resolution or knowledge of his grievance being filed. Williams, 829 F.3d at 120-21. Ultimately, the Williams Court held that “in giving his grievance to the correction officer, [the plaintiff] exhausted all administrative remedies that were available to him.” Id. at 126. Here, in his September 19, 2016 deposition, plaintiff sets forth facts suggesting prison staff filtered his mail and “when they [saw] grievances” they were thrown to the side, not delivered, “and were never [ ] seen.” See Hummel Aff. Exh. A at 91-92. The grievance that plaintiff allegedly filed on July 19, 2014 was sent to the Clinton grievance office by his mother. Id. at 94. Plaintiff never received a response on the grievance or followed up on the status of the grievance. Id. Without concrete facts, plaintiff states that his grievance was not resolved because “no civilian ... picks up your grievances. It's officers.” Id. at 91. Plaintiff's allegations of mail tampering are conclusory and weakened by the fact that other correspondence, including complaints, were sent and Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 261 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 received during the general time period material to the issues before the Court. Johnson v. Fraizer, No. 16-CV-6096(CJS), 2016 WL 7012961, at *4 (W.D.N.Y. Dec. 1, 2016) (“Plaintiff makes only a conclusory statement that his mailing was not allowed to leave the facility[,] ... his contention ... is belied by his admission that he was able to send other complaints about the matter to various New York State officials at around the same time.”); see Hummel Aff. Exh. A at 89, 94 (providing an example where plaintiff successfully sent legal mail to his mother). *7 In plaintiff's response in opposition to defendants' motion for summary judgment, he raises general complaints about defendants having total control over facility mail and defendants strategically removing grievances from the mailbox to cover up their excessive use of force against plaintiff and other inmates. See Dkt. No. 34 at 2. Plaintiff's bare assertions do not excuse exhaustion requirements. Courts in this Circuit have continuously held that mere contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there is no evidence to support the allegations. Khudan, 2016 WL 4735364, at *6 (citations omitted) (holding that under Ross, mere stand alone contentions of mail tampering without support and particularity cannot deem administrative remedies unavailable); Veloz, 339 F. Supp. 2d at 516 (holding that summary judgment is proper where the plaintiff contends that officers misplaced his grievances, but offers no evidence to support his claim). In Khudan, the court did not consider or rely upon conclusory allegations when plaintiff attested he “was informed by other [unnamed] inmates that grievances routinely go ‘missing.’ ” Khudan, 2016 WL 4735364, at *6. This is similar to plaintiff's conclusory theory of injustice and displeasure with mail procedures, and other “recurrent pattern[s]” in New York correctional facilities. Dkt. No. 34 at 2, 4; see Khudan, 2016 WL 4735364, at *6 (“Plaintiff's accusations, which ‘stand alone’ and are ‘unsupported,’ are insufficient to withstand summary judgment.”) (quoting Bolton v. City of N.Y., No. 13-CV-5749(RJS), 2015 WL 1822008, at *2 (S.D.N.Y. Apr. 20, 2015)). Courts have denied a defendant's motion for summary judgment when faced with an unanswered and unfiled grievance drafted in SHU. See, e.g., Juarbe v. Carnegie, No. 9:15-CV-01485(MAD/DEP), 2016 WL 6901277, at *1, 4 (N.D.N.Y. Nov. 23, 2016). This is distinguishable from plaintiff's alleged July 19, 2014 grievance drafted in keeplock. 8 Such a difference in inmate housing supports the notion that, “the Second Circuit's decision hinged on the ‘extraordinary circumstances’ specific to the case before it.” Mena v. City of N.Y., No. 13-CV-2430(RJS), 2016 WL 3948100, at *5 (S.D.N.Y. July 19, 2016) (quoting Williams, 829 F.3d at 119); see N.Y. COMP. CODES R. & REGS. tit. 7, § 701.7 (explaining that there are different grievance filing procedures for an inmate housed in the SHU). Inmates not housed in the SHU are in a different position to SHU inmates when determining if grievance procedures are “essentially unknowable” or unavailable. Id. at *5 (quoting Ross v. Blake, 136 S. Ct. at 1859). Plaintiff never followed up on the July 19, 2014 grievance. Hummel Aff. Exh. A at 94-95. However, on July 29, 2014, he filed a grievance in the facility that included medical complaints, but also a reference to the alleged assault on July 14, 2014. See Gregory Decl. Exh. B at 8. The Clinton grievance department received and responded to this grievance. Id. This grievance was not appealed. Id. ¶ 15. Even assuming, as the Court must on this motion, that plaintiff's allegations of mail tampering are true, he did not exhaust his administrative remedies when he failed to appeal the July 29, 2014 grievance to the next level of review. The fact that this grievance was subsequently filed and not appealed within close proximity to the July 19, 2014 grievance, coupled with three unrelated grievances filed within the next year, demonstrates that plaintiff's situation does not rise to the level where the grievance process is “opaque,” unavailable, or unascertainable. See Hill v. Tisch, No. 02CV3901(DRH/AYS), 2016 WL 6991171, at *7 (E.D.N.Y. Nov. 29, 2016) (finding that the plaintiff failed to demonstrate that the grievance “procedures were essentially unknowable”); Gregory Decl. Exh. A at 6. c. Allegation that Plaintiff Suffered Retaliation and Physical Beatings Plaintiff's pleadings also suggest an inquiry under the third prong of Ross, whether “machination, misrepresentation, or intimidation” occurred. See Ross, 136 S. Ct. at 1860. Specifically, plaintiff alleges that he did not comply with the grievance procedures because he was subjected to physical beatings, retaliation, and intimidation after complaining about conditions at Clinton. See Compl. at 3, 4, 7. For these reasons, he believed the grievance procedures were unavailable. See id. at 2-3. *8 Specific threats of retaliation or intimidation by prison employees can render administrative remedies unavailable. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 262 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Ross, 136 S. Ct. at 1860 & n.3. However, a generalized fear of retaliation is insufficient to overcome a failure to exhaust administrative remedies. Salmon, 2016 WL 4411338, at *5. Estoppel is found where “verbal and physical threats of retaliation, physical assault, denial of grievance forms or writing implements, and transfers” occur showing that defendants acted affirmatively to prevent an inmate from availing him or herself of the grievance procedures. Id. at *5 (quoting Amador v. Andrews, 655 F.3d 89, 103 (2d Cir. 2011)). In Riles, the Second Circuit affirmed a district court's ruling that prison officials' alleged threats did not interfere with exhaustion efforts when plaintiff stated he was threatened “if he pushed the issue,” but then subsequently filed a grievance in spite of the alleged threats. See Riles v. Buchanan, 656 Fed.Appx. 577, 581 (2d Cir. 2016) (summary order). Relying on Ross, courts have carved out factual limitations to the third prong of unavailability concerning fear of retaliation. See, e.g., Aviles v. Tucker, No. 14-CV-08636(NSR), 2016 WL 4619120, at *3-4 (S.D.N.Y. Sept. 1, 2016) (citing Ross, 136 S. Ct. at 1860). In Aviles, the court noted a longstanding rule that general beliefs of retaliation or fears do not excuse the exhaustion requirement. Aviles, 2016 WL 4619120, at *4 (citations omitted). Circumstances that have met the threshold of unavailability by means of intimidation have included widespread beatings with assertions of fear for one's life, in conjunction with the plaintiff withholding all complaints until he was transferred to a different facility. See, e.g., id. (quoting Thomas v. Cassleberry, No. 03-cv-6394L, 2007 WL 1231485, at *2 (W.D.N.Y. Apr. 24, 2007)). Allegations of threats are conclusory where a plaintiff's allegation “does not indicate who threatened him, when he was threatened, or how he was threatened.” See Johnson v. Fraizer, No. 16- CV-6096(CJS), 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1, 2016). In contrast, this Court has denied a summary judgment motion when a plaintiff alleged he was threatened by a specific correction that the officer would “break [plaintiff's] bones,” and another specific correction officer threatened to beat plaintiff “a [sic] inch from life” if he filed a grievance. Galberth v. Durkin, No. 914CV115(BKS/ATB), 2016 WL 3910270, at *3 (N.D.N.Y. July 14, 2016). Here, plaintiff offers conclusory allegations in his complaint that “[he] was beaten” while attempting to access Clinton's grievance program. Compl. at 2, 3. Plaintiff offers no information of when or how he was threatened or beaten after the July 14, 2014 incident. Some instances of threats alleged by plaintiff refer to a time period before he filed a grievance and he does not state how any specific threat or subsequent act of violence impacted his ability to exhaust administrative remedies related to the events that occurred on July 14, 2014. See Aviles, 2016 WL 4619120, at *4 (finding grievance procedures available where plaintiff offers conclusory allegations of fear and does not substantiate what specific fears or past acts preclude him from advancing in grievance procedures); Harrison v. Stallone, No. 9:06- CV-902(LEK/GJD), 2007 WL 2789473, at *5 (N.D.N.Y. Sept. 24, 2007) (“It has been held that a ‘general fear’ of retaliation is not sufficient to excuse the exhaustion requirement.... If an inmate could simply state that he feared retaliation, there would no point in having a grievance procedure.”) (citations omitted); see, e.g., Hummel Aff. Ex. A at 58. Much of plaintiff's fear is generalized. For instance, he notes that corrections officers become agitated when they see legal mail and “that's when harassment comes.” Hummel Aff. Ex. A at 92. By his own admission, plaintiff denies any actual physical force being used against him that prohibited him from taking part in the grievance program. Hummel Aff. Ex. A at 99; see Salmon, 2016 WL 4411338, at *5 (stating there must be affirmative actions or specific instances of physical assault or threats of retaliation for plaintiff to show unavailability of the grievance process). *9 The Court notes that plaintiff directly contradicted allegations in his complaint by statements made in his deposition. While the complaint alleges conclusory instances of being “beaten by staff,” plaintiff admits that other than being cut on his face by an inmate in the yard on October 5, 2015, there has not been any other physical force used against him by inmates or correction officers since July 14, 2014. Hummel Aff. Ex. A at 99; Compl. at 3. This statement contradicts plaintiff's allegations of being beaten by staff. See Williams v. Doe, No. 12-CV-1147(HKS), 2016 WL 4804057, at *5 (W.D.N.Y. Sept. 14, 2016) (granting a motion for summary judgment after noting that any triable issue of fact on exhaustion of administrative remedies can be eliminated when plaintiff's prior representations to the court are “flatly contradict[ed]”). Further, this Court finds that plaintiff's failure to follow the grievance procedures cannot be excused by fears or intimidation, when he simultaneously made his complaints known through other means. After the alleged incident, plaintiff was seen by a nurse in a room with “about ten” officers, where he admits “having no choice,” but to tell the nurse that they had beaten him. Hummel Aff. Exh. A at 57-58. Plaintiff also aired his complaints and concerns in writing Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 263 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 outside of the grievance procedures, clearly identifying his complaints in full substance, including the identification of those who committed acts against him. See, e.g., Hummel Aff. Exh. A at 93; Gregory Decl. Exh. A at 8. Similarly in Johnson v. Fraizer, the Court rejected plaintiff's argument that administrative remedies were unavailable where the plaintiff alleged he was threatened by correction officers but continued to make and send formal complaints to prison officials and other New York State officials. Johnson v. Fraizer, No. 16- CV-6096 (CJS), 2016 WL 7012961, at *5 (W.D.N.Y. Dec. 1, 2016). By plaintiff's own admission, it is clear that he sought to file the initial grievance and tell others about his complaints, which disprove any claim of intimidation or fear of retaliation. Quick v. Omittee, No. 14-CV-1503(TJM/ CFH), 2016 WL 5219732, at *4 (N.D.N.Y. Aug. 11, 2016), report and recommendation adopted, No. 914CV1503 (TJM/ CFH), 2016 WL 5107125 (N.D.N.Y. Sept. 20, 2016) (holding that fear of physical retaliation or assaults does not deem grievance procedures unavailable when plaintiff continuously sought to file complaints with officials). Like in Quick, where the plaintiff filed formal internal grievances and the grievance procedures were deemed available, here the plaintiff alleges drafting two internal grievances outlining the alleged July 14, 2014 incident. See id. at * 4; Hummel Aff. Exh. A at 93; Gregory Decl. Exh. B at 8. Thus, plaintiff has not shown that administrative remedies were unavailable due to intimidation and threats. In conclusion, the Court finds that defendants have met their burden in showing that there is no genuine issue of material fact as to plaintiff's failure to exhaust administrative remedies. Accordingly, the Court recommends that defendants' motion be granted. III. Conclusion For the reasons stated above, it is hereby RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 26) on plaintiff Edy Rodriguez's complaint (Dkt. No. 1) be GRANTED; and it is further RECOMMENDED that plaintiff Edy Rodriguez's complaint (Dkt. No. 1) be DISMISSED in its entirety, without prejudice; and it is further ORDERED, that the Clerk of the Court serve a copy of this Report-Recommendation and Order upon the parties in this action, pursuant to local rules. 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 Fed. Supp., 2017 WL 2791063 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 On March 27, 2017, this Court granted plaintiff an extension until May 1, 2017 to file a motion to amend his complaint. Dkt. No. 38. The deadline has expired and plaintiff has not filed a motion to amend his complaint. 3 Exhibit A to the Affirmation of Christopher J. Hummel is a transcript of plaintiff's deposition, held on September 19, 2016 at Great Meadow Correctional Facility. See Dkt. No. 26-1. 4 When citing documents within the record, the Court uses the page numbers generated by CM/ECF. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 264 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 5 All unpublished opinions cited to by the Court in this Report-Recommendation and Order are, unless otherwise noted, attached to this Report-Recommendation and Order. 6 SHUs exist in all maximum and certain medium security facilities. The units “consist of single-occupancy cells grouped so as to provide separation from the general population....” N.Y. COMP. CODES R. & REGS. tit. 7, § 300.2(b). Inmates are confined in a SHU as discipline, pending resolution of misconduct charges, for administrative or security reasons, or in other circumstances as required. Id. at pt. 301. 7 Both the August and November grievances are unrelated to the cause of action before the Court. Gregory Decl. Exh. A at 6. 8 “Keeplock is a form of disciplinary confinement segregating an inmate from other inmates and depriving him of participation in normal prison activities.” Green v. Bauvi, 46 F.3s 189, 192 (2d Cir. 1995); N.Y. COMP. CODES R. & REGS. tit. 7, § 301.6. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 265 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2017 WL 2790530 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Edy RODRIGUEZ, Plaintiff, v. J. CROSS, Sergeant, Clinton Corr. Fac.; R. Furnia, Sergeant, Clinton Corr. Fac.; G. Falcon, Corr. Officer, Clinton Corr. Fac.; and J. Roberts, Corr. Officer, Clinton Corr. Fac., Defendants. 9:15-CV-1079 (GTS/CFH) | Filed 06/27/2017 Attorneys and Law Firms EDY RODRIGUEZ, No. 8951602009, Anna M. Kross Center, 18-18 Hazen Street, East Elmhurst, New York 11370, Pro Se. HON. ERIC T. SCHNEIDERMAN, OF COUNSEL: CHRISTOPHER J. HUMMEL, ESQ. Assistant Attorney General, The Capitol Albany, New York 12224, Attorney General for the State of New York, Counsel for Defendants. DECISION and ORDER HON. GLENN T. SUDDABY, Chief United States District Judge *1 Currently before the Court, in this pro se prisoner civil rights action filed by Edy Rodriguez (“Plaintiff”) against the four above-captioned employees of the New York State Department of Corrections and Community Supervision at Clinton Correctional Facility in Dannemora, New York (“Defendants”), are Defendants' motion for summary judgment seeking dismissal of Plaintiff’s Complaint for failure to exhaust his administrative remedies, and United States Magistrate Judge Christian F. Hummel’s Report- Recommendation recommending that Defendants' motion be granted and that Plaintiff’s Complaint be dismissed in its entirety without prejudice. 1 (Dkt. Nos. 26, 40.) Plaintiff has not filed an Objection to the Report-Recommendation despite having received an extension of the filing deadline, which has expired. (Dkt. No. 42.) After carefully reviewing the relevant papers herein, including Magistrate Judge Hummel’s thorough Report- Recommendation, the Court can find no clear-error in the Report-Recommendation. 2 Magistrate Judge Hummel employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No. 40.) As a result, the Report-Recommendation is accepted and adopted in its entirety for the reasons set forth therein; Defendants' motion for summary judgment is granted; and Plaintiff’s Complaint is dismissed in its entirety without prejudice. ACCORDINGLY, it is ORDERED that Magistrate Judge Hummel’s Report- Recommendation (Dkt. No. 40) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Defendants' motion for summary judgment (Dkt. No. 26) is GRANTED; and it is further ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED in its entirety without prejudice; and it is further ORDERED that the Clerk of the Court shall enter Judgment for Defendants and close this action. All Citations Not Reported in Fed. Supp., 2017 WL 2790530 Footnotes 1 The Court notes that Assistant Attorney General Christopher J. Hummel is of no relation to U.S. Magistrate Judge Christian F. Hummel. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 266 of 300
Rodriguez v. Cross, Not Reported in Fed. Supp. (2017) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 2 When no objection is made to a report-recommendation, the Court subjects that report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.; see also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge’s] report to which no specific objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks omitted). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 267 of 300
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2022 WL 3020254 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Michael RUIZ, Plaintiff, v. P. LINK, J. Reyes, Patrick Squire, Michael Blot, Deborah Macdonald, and John Does #1-3, Defendants. No. 20-CV-235 (CS) | Signed July 29, 2022 Attorneys and Law Firms Michael Ruiz, Comstock, New York, Pro Se Plaintiff. Kathryn Martin, Assistant Attorney General, Office of the Attorney General of the State of New York, White Plains, New York, Counsel for Defendants. OPINION & ORDER Seibel, District Judge *1 Before the Court is Defendants' motion for summary judgment. (ECF No. 66.) For the reasons set forth below, Defendants' motion is GRANTED. I. BACKGROUND The following facts are based on Defendants' Local Civil Rule 56.1 Statement, (ECF No. 68 (“D's 56.1 Stmt.”)), and supporting materials, and are undisputed unless otherwise noted. 1 A. Facts Plaintiff Michael Ruiz is incarcerated in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). (D's 56.1 Stmt. ¶ 1.) Plaintiff's claims arose while he was held at Green Haven Correctional Facility. (Id. ¶ 2.) Plaintiff brings this lawsuit in connection with an altercation in the prison yard on April 6, 2019 and the medical treatment he received thereafter. (Id. ¶¶ 3-4.) He alleges excessive force claims against Defendants Link, Reyes, Squire and Blot, and a claim of deliberate indifference to medical needs against Defendant MacDonald. 2 *2 The altercation and medical treatment at issue occurred on April 6, 2019. (Ds' 56.1 Stmt. ¶¶ 3-4.) That same day, Plaintiff was transferred from Green Haven to Sing Sing Correctional Facility. (Id. ¶ 22.) While at Sing Sing, Plaintiff filed a grievance, dated April 9, 2019, 3 alleging that on April 6, 2019, correction officers used excessive force against him, and medical staff failed to properly treat him. (D's 56.1 Stmt. ¶ 24; see ECF No. 71-6.) The grievance was denied by the Sing Sing Superintendent on July 26, 2019. (D's 56.1 Stmt. ¶ 25; ECF No. 71-7.) Plaintiff testified at his deposition that he did not receive a copy of the Superintendent's denial until October 9, 2019, when he received a memo from Sing Sing's Inmate Grievance Program (“IGP”) Supervisor, dated August 30, 2019. (P's Depo. at 79:22-80:13; see ECF No. 65-6.) The letter informed Plaintiff that his grievance had been answered on July 26, 2019 and forwarded to Plaintiff at that time; the Supervisor included with the memo a copy of the Superintendent's July 26 denial. (Id.) The bottom portion of the Superintendent's denial letter is a form the inmate can fill out if he wishes to appeal; it states, “[R]eturn this copy to your Inmate Grievance Clerk.” (ECF No. 71-7.) 4 By the time Plaintiff received the letter and the copy of the Superintendent's denial on October 9, Plaintiff had been transferred out of Sing Sing and was being held in the Special Housing Unit (“SHU”) at Elmira Correctional Facility. (Ds' 56.1 Stmt. ¶ 26; P's Depo. at 78:8-19, 78:25-79:21.) 5 DOCCS records reflect that the Central Office Review Committee (“CORC”) never received any appeal of the Superintendent's denial of Plaintiff's grievance. (D's 56.1 Stmt. ¶ 28.) Further, DOCCS records reflect that CORC did not receive any correspondence from Plaintiff at all during 2019 or 2020. (Id. ¶ 29; see ECF No. 70 (“Seguin Decl.”) ¶ 13.) Plaintiff asserted in his deposition that he filled out the appeal form on October 10, 2019 and “forwarded it to CORC ... [b]y mail.” (P's Depo. at 80:24-81:4; see id. at 82:20-83:7.) Plaintiff did not specify the address to which he mailed the appeal, but stated that he requested and received the address from the law library. (Id. at 82:3-19.) Plaintiff did not receive an acknowledgement of receipt or answer from CORC. (Id. at 81:5-7.) After several months, he filed this lawsuit. (Id. at 81:8-13.) B. Procedural History Plaintiff filed his original complaint on January 8, 2020, bringing claims under 42 U.S.C. § 1983 against eight Green Haven employees in their individual capacities for violations Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 268 of 300
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 of the Eighth Amendment. (ECF No. 2.) The case was reassigned to me on February 14, 2020. At a pre-motion conference on August 28, 2020 in anticipation of a potential motion to dismiss, I granted Plaintiff leave to amend his Complaint. (See Minute Entry dated Aug. 28, 2020.) The Amended Complaint was filed on September 25, 2020. (ECF No. 30.) Defendants answered on April 8, 2021. (ECF No. 44.) On May 11, 2021, I held a status conference and set a discovery schedule, (ECF No. 51), which was extended twice, (ECF Nos. 57, 60). At the close of discovery, Defendants filed a pre-motion letter in anticipation of their motion for summary judgment. (ECF No. 64.) 6 I held a pre-motion conference on November 16, 2021 and set a briefing schedule for Defendants' motion. (See Minute Entry dated Nov. 16, 2021.) On December 29, 2021, Defendants filed their motion papers. (ECF Nos. 66-71.) Plaintiff's opposition was initially due on January 27, 2022. Approximately one to two weeks before the due date Plaintiff left two phone messages with my chambers, requesting an extension of the briefing schedule and permission to file a motion to obtain counsel. (See ECF No. 74.) On January 19, 2022, I entered an Order extending Plaintiff's time to respond to the motion to February 28, 2022, and advising him of his right to file a motion asking the Court to seek volunteer counsel. (Id.) On March 18, 2022, I received a letter from Plaintiff (dated March 14, 2022), indicating that his opposition was ready, and he just wanted permission to file it late; I granted an extension to April 6, 2022, and noted there would be no further extensions. (ECF No. 76.) On April 28, 2022, after no opposition was received, I deemed the motion fully submitted. (ECF No. 78.) II. LEGAL STANDARD *3 Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[T]he dispute about a material fact is ‘genuine’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law .... Factual disputes that are irrelevant or unnecessary will not be counted.” Id. On a motion for summary judgment, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255. The movant bears the initial burden of demonstrating “the absence of a genuine issue of material fact,” and, if satisfied, the burden then shifts to the non-movant to “present evidence sufficient to satisfy every element of the claim.” Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008). “The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252. Moreover, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and “may not rely on conclusory allegations or unsubstantiated speculation,” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (cleaned up). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations ... admissions, interrogatory answers, or other materials ....” Fed. R. Civ. P. 56(c)(1). Where a declaration is used to support or oppose the motion, it “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the ... declarant is competent to testify on the matters stated.” Id. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008). In the event that “a party fails ... to properly address another party's assertion of fact as required by Rule 56(c), the court may ... consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials – including the facts considered undisputed – show that the movant is entitled to it.” Fed. R. Civ. P. 56(e). Pro se litigants must be afforded “special solicitude,” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010), “particularly where motions for summary judgment are concerned,” Jackson v. Fed. Express, 766 F.3d 189, 195 (2d Cir. 2014). Where, as here, the non-moving party fails to respond to the movant's summary judgment motion, “the district court may not grant the motion without first examining the moving party's submission to determine if it has met its burden of demonstrating that no material issue of fact remains for trial.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (cleaned up). “If the evidence submitted in support of the summary judgment motion does not meet the movant's burden of production, then summary judgment Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 269 of 300
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 must be denied even if no opposing evidentiary matter is presented.” Id. (cleaned up) (emphasis omitted). III. DISCUSSION A. Exhaustion Under the PLRA The Prison Litigation Reform Act (“PLRA”) provides 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). Exhaustion is required for “all inmate suits about prison life, whether they involve general circumstances or particular episodes.” Porter v. Nussle, 534 U.S. 516, 532 (2002). The PLRA mandates that a plaintiff use “all steps that the agency holds out, and do[ ] so properly” – that is, in accordance with the applicable agency rules. Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (cleaned up). Exhaustion of available administrative remedies “must be complete prior to commencement of suit” and “[t]he fact that a grievance is filed, or the process is completed, subsequent to commencement of suit will not salvage an otherwise premature filing.” Chalif v. Spitzer, No. 05-CV-1355, 2008 WL 1848650, at *13 (N.D.N.Y. Apr. 23, 2008) (cleaned up). *4 For inmates in New York State prison, administrative exhaustion requires compliance with DOCCS' three-tiered IGP, in which (1) the inmate must file a grievance with the Inmate Grievance Resolution Committee (“IGRC”) within twenty-one days of the alleged occurrence, (2) the inmate must then appeal an adverse decision by the IGRC to the superintendent of the facility within seven days after receipt of the IGRC's response, and (3) the inmate must then appeal an adverse decision by the superintendent to the CORC within seven days after receipt of the superintendent's response. See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5 (2022); McGee v. McGready, No. 16-CV-4187, 2018 WL 2045094, at *2 (S.D.N.Y. Apr. 30, 2018). “[W]hen a grievance concerns staff harassment, DOCCS procedures provide for an expedited review that allows for the complaint to bypass IGRC review and proceed before the Superintendent in the first instance.” Jackson v. Jackson, No. 16-CV-8516, 2021 WL 981849, at *4 (S.D.N.Y. Mar. 16, 2021); see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8. Under the expedited procedure, the Superintendent has twenty-five days to respond to the grievance. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8(f). If the Superintendent fails to respond within twenty-five days, the inmate may appeal directly to CORC. Id. § 701.8(g). If the Superintendent does respond, the inmate has seven days from receipt of the response to appeal to CORC. Id. § 701.8(h). The IGP Supervisor has discretion to grant exceptions to the time limits for filing or appealing grievances. See id. § 701.6(g). Whether or not the Superintendent timely responds, the procedure to appeal a determination of the Superintendent to CORC is to file “a notice of decision to appeal (form #2133) with the inmate grievance clerk.” Id. § 701.8(g)-(h). 7 Inmates who have been transferred to a different facility can get their appeal to the appropriate grievance clerk by “mail[ing] the signed appeal form back to the IGP supervisor at the facility where the grievance was originally filed.” Id. § 701.6(h)(2). CORC is required to provide, through IGP staff, written confirmation that an appeal has been received, and if the inmate does not receive such confirmation within forty-five days, he “should contact the IGP supervisor in writing to confirm that the appeal was filed and transmitted to CORC.” Id. § 701.5(d)(3)(i). The IGP requires CORC to respond to an appeal within thirty days of receipt. Id. § 701.5(d)(3)(ii). If CORC has received an appeal and fails to rule within those thirty days, the inmate is considered to have exhausted his administrative remedies and may file suit. Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020). B. Plaintiff's Failure to Exhaust Defendants have met their burden to demonstrate that Plaintiff failed to follow IGP procedures with regard to his CORC appeal and that CORC never received Plaintiff's appeal. Accordingly, Plaintiff failed to “properly” exhaust administrative remedies prior to filing suit. See Amador, 655 F.3d at 96. Plaintiff testified that once he received the Superintendent's adverse decision on October 9, 2021, he filled out the appeal statement and “forwarded it to CORC ... [b]y mail.” (P's Depo. at 80:24-81:4.) He never received confirmation that his appeal was received or any response from CORC, and after a few months he filed this lawsuit. (Id. at 81:8-13.) The IGP required Plaintiff to forward the appeal to the Inmate Grievance Clerk. N.Y. Comp. Codes R. & Regs. tit. 7, § 701.8(g)-(h). The form at the bottom of the Superintendent's letter also notified Plaintiff that the appeal to CORC had to be transmitted via the Inmate Grievance Clerk. (See ECF No. 71-7.) The IGP specifically provides that Plaintiff, having Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 270 of 300
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 been transferred to a different facility from that in which he originally filed his grievance, should get his appeal to the proper Inmate Grievance Clerk by “mail[ing] the signed appeal form back to the IGP supervisor at the facility where the grievance was originally filed.” Id. § 701.6(h)(2). Nothing in the record indicates that Plaintiff followed this procedure; rather, it appears he tried to mail his appeal directly to CORC, and CORC never received the document. (See Seguin Decl. ¶¶ 12-13 (CORC never received appeal of Plaintiff's grievance, nor did it receive any other correspondence from Plaintiff during 2019 or 2020); ECF No. 71-8 (CORC records showing no receipt of appeal)). *5 Accordingly, Plaintiff failed to properly follow the grievance procedure and has failed to exhaust his administrative remedies. See Valverde v. Folks, No. 19- CV-8080, 2022 WL 836310, at *6 (S.D.N.Y. Mar. 21, 2022) (“Plaintiff did not properly comply with [the] prison grievance procedural rules. Plaintiff ... mailed his appeal statement directly to CORC. However, to appeal a decision denying a grievance, an inmate must submit the appeal, not directly to CORC, but to the grievance supervisor of the facility where the grievance was originally filed for forwarding to that facility's grievance clerk.”); Wilkinson v. Banks, No. 2-CV-361, 2007 WL 2693636, at *6 (W.D.N.Y. Sep. 10, 2007) (“[N]o dispute exists that [the pro se plaintiff] did not follow correct procedure in attempting to appeal that grievance to CORC. He did not file his appeal with the Inmate Grievance Clerk as required by the regulations, but rather mailed it directly to CORC.”) (cleaned up). C. Availability of Administrative Remedies Although the Supreme Court has deemed exhaustion mandatory, there are circumstances under which administrative remedies may be deemed “unavailable” to an inmate, such that an inmate is not required to exhaust. Ross v. Blake, 578 U.S. 632, 642 (2016). The Supreme Court identified three circumstances where administrative remedies may be unavailable. See id. at 643-44. 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. at 643. Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. Third, administrative remedies are unavailable where “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at 644. “If the defendant has met its burden of establishing the existence and applicability of the grievance policy, the plaintiff bears the burden of establishing de facto unavailability.” Saeli v. Chautauqua County, 36 F.4th 445, 453 (2d Cir. 2022) (emphasis in original). Plaintiff has submitted no opposition to the instant motion and has not argued that administrative procedures were unavailable to him. See Dowling v. Barkman, No. 17- CV-647, 2019 WL 7971868, at *5 (N.D.N.Y. Dec. 20, 2019) (“Given Plaintiff's failure to oppose the Motion, no basis appears on the record for concluding that DOCCS' grievance procedure was unavailable to him.”), report and recommendation adopted sub nom. Dowling v. Schleicher, 2020 WL 103480 (N.D.N.Y. Jan. 8, 2020). Even if that were not the case, the record does not reflect that any of the above- listed circumstances apply. First, nothing in the record suggests that Plaintiff did not receive a response from CORC because the grievance process was operating as a “dead end” – rather, it appears that CORC never received Plaintiff's appeal because of Plaintiff's failure to send the appeal to the appropriate official. (See P's Depo. at 80:24-81:4; Seguin Decl. ¶¶ 12-13; ECF No. 71-8.) Similarly, the record is bereft of evidence that the IGP is unavailable to inmates generally. See White v. Veile, 709 F. App'x 35, 38 (2d Cir. 2017) (summary order) (affirming summary judgment for failure to exhaust administrative remedies where plaintiff did not “present[ ] any evidence about the outcomes in the grievance system in general” or “show[ ] that prison officials are consistently unwilling to grant relief”). Second, as set out above, the relevant procedures are not opaque. The IGP clearly sets out the process for appealing a grievance to CORC through the Inmate Grievance Clerk – including the instructions under § 701.6(h)(2) for an inmate who has been transferred from one facility to another to send an appeal to the appropriate facility's IGP Supervisor. Plaintiff testified that he is familiar with the grievance process, (see P's Depo. at 18:3-19:6), and the Superintendent's denial stated that the appeal to CORC had to go through the Inmate Grievance Clerk, (see ECF No. 71-7). *6 Third, while there is some evidence in the record that Plaintiff sought information from the “law library officer” while he was in the SHU at Elmira and appears to have been given a mailing address for CORC, 8 this fact alone is insufficient to establish that a prison official thwarted his ability to successfully appeal to CORC. Plaintiff has not suggested that he asked how to appeal and was told to mail his Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 271 of 300
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 appeal to CORC, or that he asked the law library officer for anything other than the address of CORC. There is simply no evidence of machination, intimidation or misrepresentation. That the breakdown of the grievance procedure here was due to Plaintiff's failure to follow it, rather than to its unavailability, is highlighted by the fact that when Plaintiff did not receive confirmation that CORC was in possession of his appeal within the forty-five days envisioned by the regulations, instead of following the IGP and writing to Sing Sing's IGP Supervisor – an official with whom he had recently communicated, (see P's Depo. at 79:22-80:13, 81:14-21) – to confirm that the appeal was filed, see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(3)(i), he simply waited a few months and then filed this lawsuit. (P's Depo. at 79:25-80:8, 81:5-13). 9 In short, “[g]iven the lack of evidence that Plaintiff's appeal to CORC was ever filed, or ever followed up on, it is not that the full scope of administrative remedies was not available to Plaintiff – rather, Plaintiff failed to fully exhaust the administrative remedies available to him.” Houston v. Coveny, No. 14-CV-6609, 2020 WL 2494439, at *3 (W.D.N.Y. May 14, 2020); see Litchmore v. Williams, No. 11- CV-7546, 2013 WL 3975956, at *6 (S.D.N.Y. Aug. 5, 2013) (no “sufficient basis in the record to find that administrative remedies were unavailable” where, among other things, there was “no evidence here that the plaintiff's appeal was actually mailed, intercepted, or ignored” and “DOCCS has no record of any appeal filed with CORC”). 10 IV. CONCLUSION For the foregoing reasons, Defendants' motion for summary judgment is GRANTED. The Clerk of Court is respectfully directed to terminate the pending motion, (ECF No. 83), enter judgment for Defendants, and close the case. SO ORDERED. All Citations Not Reported in Fed. Supp., 2022 WL 3020254 Footnotes 1 Plaintiff did not file a responsive Rule 56.1 Statement or any papers in opposition to this motion. Local Civil Rule 56.1 requires that the party opposing a motion for summary judgment submit a counterstatement responding to the moving party's statement of material facts, indicating which facts are admitted and which the opposing party contends are in dispute and require a trial. L.R. 56.1(b). Under the Local Rule, “[i]f the opposing party ... fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted.” Giannullo v. City of N.Y., 322 F.3d 139, 140 (2d Cir. 2003) (citing L.R. 56.1(c)). Pro se litigants are not excused from this requirement. SEC v. Tecumseh Holdings Corp., 765 F. Supp. 2d 340, 344 n.4 (S.D.N.Y. 2011). As Defendants served Plaintiff with the requisite notice pursuant to Local Civil Rule 56.2, (see ECF No. 72), I have discretion to consider any properly supported facts in Defendants' Local Civil Rule 56.1 Statement admitted. (The Court will send Plaintiff copies of any unpublished decisions cited in this Opinion and Order.) But granting Plaintiff solicitude, I have considered his deposition testimony, (ECF No. 71-2 (“P's Depo.”)), statements in his complaint and amended complaint, both of which are sworn under penalty of perjury pursuant to 28 U.S.C. § 1746, (ECF Nos. 2, 30), and his letter in response to Defendants' pre-motion letter, (ECF No. 65). See Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (“[W]hile a court is not required to consider what the parties fail to point out in their Local Rule 56.1 statements, it may in its discretion opt to conduct an assiduous review of the record even where one of the parties has failed to file such a statement.”) (cleaned up). 2 Defendants move for summary judgment on all of Plaintiff's claims on the ground that he failed to exhaust his administrative remedies, and in the alternative for summary judgment only on Plaintiff's deliberate medical Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 272 of 300
Ruiz v. Link, Not Reported in Fed. Supp. (2022) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 indifference claim. (See ECF No. 67 at 1.) Because I resolve the motion on the basis of failure to exhaust administrative remedies, I do not describe the specific allegations further. 3 Defendants state in their Rule 56.1 statement that Plaintiff's grievance is dated April 22, 2019, but that is the date on which the grievance was stamped as received by the facility. (See ECF No. 71-6.) 4 The form is captioned “Appeal Statement,” and below the caption it reads: “If you wish to refer the above decision of the Superintendent please sign below and return this copy to your Inmate Grievance Clerk. You have seven (7) calendar days from your receipt of this notice to file your appeal.* Please state why you are appealing this decision to C.O.R.C.” The asterisk leads to a statement about how to request an exception to the time limit. Below the language quoted above are several lines for the inmate to explain why he is appealing, and then signature lines for the inmate and the Grievance Clerk. 5 Plaintiff notes that it is possible he had not previously received the Superintendent's denial because much of the time he was at Sing Sing he was housed in the Office of Mental Health (“OMH”) unit after several suicide attempts between June and September of 2019. (P's Depo. at 78:5-19.) 6 Plaintiff responded by letter dated November 8, 2021, but that letter was not received and docketed until November 24, 2021. (See ECF No. 65.) 7 The procedure to appeal to CORC under the normal, non-expedited procedures is the same. See N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(d)(1)(i). 8 Plaintiff testified as his deposition as follows: [Q.] So how do you know where to send the grievance appeal? ... A. You can actually get the address from the law library that they provide in the facility. They have all the information of addresses, names, stuff like that. Q. And is that what you did? You went to the law library? A. Yes, ma'am. I was in the special housing unit at the time, so the law library officer will actually come to you and take your request and then return the request by the next day. (P's Depo. at 82:6-19.) 9 Plaintiff's response to the question whether he ever followed up with CORC – that he “tried checking [the appeal], but it had already been months they hadn't responded, so I proceeded with my civil Complaint,” (P's Depo. at 81:8-13) – not only contains no information about what he did to check, but suggests at most that he asked about the status of his appeal at or about the same time that he filed this lawsuit. 10 Having so found, I need not and do not address the merits of Plaintiff's medical indifference claim. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 273 of 300
Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2009 WL 3672105 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Walter RUSYNIAK; and Anthony Rusyniak, Plaintiffs, v. Ena Paola GENSINI; Gunilla De Montaigu; and Concha Futura, S.A., Defendants. No. 5:07–CV–0279 (GTS/GHL). | Oct. 30, 2009. Attorneys and Law Firms Costello, Cooney & Fearon, PLLC, Robert M. Smith, Esq., Kristen L. Pickard, Esq., of Counsel, Syracuse, NY, for Plaintiffs. Hiscock & Barclay, LLP, Robert A. Barrer, Esq., of Counsel, Syracuse, NY, for Defendants Gunilla De Montaigu and Concha Futura, S.A. Greene, Hershdorfer & Sharpe, Victor J. Hershdorfer, Esq., of Counsel, Syracuse, NY, for Defendant Ena Paola Gensini. MEMORANDUM DECISION and ORDER GLENN T. SUDDABY, District Judge. *1 Currently pending before the Court in the above- captioned action is a motion by Defendants containing two alternative requests for relief: (1) a request for reconsideration of Part III.D.5 of the Court's Decision and Order of May 5, 2009, denying Defendants' request for dismissal of all of Plaintiffs' claims due to the doctrine of forum non conveniens; and (2) a request for dismissal of the First Cause of Action of Plaintiffs' Third Amended Complaint (asserting a claim of violation of Panama law) as barred by the three-year statute of limitations set forth in the certified translation of Article 1652 of the Panamanian Code. (Dkt. No. 61.) For the reasons set forth below, Defendants' motion is granted in part, and denied in part. I. REQUEST FOR RECONSIDERATION To the extent that Defendants' motion requests reconsideration of the Court's decision to denying their request for dismissal of all of Plaintiffs' claims due to the doctrine of forum non conveniens, that motion is untimely. Defendants' motion was filed on June 8, 2009. (Dkt. No. 61.) The Order of which reconsideration was sought was entered on May 5, 2009. (Dkt. No. 56.) See N.D.N.Y. L.R. 7.1(g) (setting ten-day deadline for motions for reconsideration). Defendants' attempt to characterize the Order of which reconsideration is sought as being the Court's Text Order of May 29, 2009, is unconvincing. That Text Order merely indicates the extent to which Plaintiffs' signed Third Amended Complaint fails to comport with the Court's Decision and Order of May 5, 2009 (and was issued in response to Plaintiffs' request for guidance). Even liberally construed, Defendants' motion for reconsideration expressly and repeatedly challenges the substance of the Court's Order of May 5, 2009 (specifically, Part III.D.5. thereof), and only that Order. (See, e.g., Dkt. No. 61, Part 2, ¶ 4; Dkt. No. 61, Part 4, Points II and III.) In any event, even if the Court were to consider the merits of Defendants' motion for reconsideration, the Court would deny that motion as without cause: there has been no intervening change of controlling law, no previously unavailable evidence, and there exists no clear error of law or manifest injustice with regard to the relevant portion of the prior decision in question. For these reasons, Defendants' request for reconsideration is denied. II. REQUEST FOR DISMISSAL OF FIRST CAUSE OF ACTION To the extent that Defendants' motion alternatively requests the dismissal of the First Cause of Action of Plaintiffs' Third Amended Complaint (asserting a claim of violation of Panama law) as barred by the three-year statute of limitations set forth in the certified translation of Article 1652 of the Panamanian Code, that motion is granted. Defendants are correct that Plaintiffs failed, in their response papers, to oppose this request. (See Dkt. No. 63.) The closest that Plaintiffs come to opposing this request is when, in a supplemental letter request, they (correctly) point out that Defendants have improperly broadened the target of their Panamanian-statute-of-limitations argument from Plaintiffs' First Cause of Action to all of Plaintiffs' causes of action. (Dkt. No. 66; see also Dkt. No. 61, Part 4, at 7–8.) As a result of Plaintiffs' failure to address Defendants' argument Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 274 of 300
Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 regarding Plaintiffs' First Cause of Action, Defendants' burden on this motion is somewhat lightened with regard to that cause of action. 1 *2 After carefully reviewing the parties' motion papers, and Plaintiffs' Third Amended Complaint, the Court finds that Defendants have met their lightened burden on their motion to dismiss Plaintiff's First Cause of Action. The Court reaches this conclusion based on substance of the certified translation provided by Defendants (i.e., the certified translation of Article 1652 of the Commercial Code of the Republic of Panama). (Dkt. No. 61, Part 3.) The Court reaches this conclusion also based on the reasons stated in Part III.D.7.a. of the Court's Order of May 5, 2009. (See Dkt. No. 56, at 44– 47.) See also Rusyniak v. Gensini, 629 F.Supp.2d 203, 231– 33 (N.D.N.Y.2009) (Suddaby, J.). For these reasons, Defendants' request to dismiss Plaintiff's First Cause of Action is granted. ACCORDINGLY, it is ORDERED that Defendants' motion (Dkt. No. 61) is GRANTED in part, and DENIED in part, in accordance with the above Decision and Order; and it is further ORDERED that Defendants' motion for reconsideration of the May 5, 2009 Decision and Order is DENIED, however, the First Cause of Action of Plaintiffs' Third Amended Complaint (Dkt. No. 58) is DISMISSED as barred by the three-year statute of limitations set forth in the certified translation of Article 1652 of the Panamanian Code; and it is further ORDERED that counsel for all parties are directed to attend an in-person pretrial conference on NOVEMBER 19, 2009 at 2:00 p.m. in Judge Suddaby's chambers in Syracuse, New York, at which counsel are directed to appear with settlement authority. All Citations Not Reported in F.Supp.2d, 2009 WL 3672105 Footnotes 1 See Cossey v. David, 04–CV–1501, 2007 WL 3171819, at *7 (N.D.N.Y. Oct. 29, 2007) (Lowe, M.J. adopted by Scullin, J.) (noting that, where plaintiffs do not respond to defendants' argument made in their summary judgment motion, plaintiffs are deemed to have consented to defendants' argument, and thus defendants must only satisfy “their modest burden of demonstrating entitlement to the relief requested through that argument”); Saunders v. Ricks, 03–CV–598, 2006 WL 3051792, at *9 (N.D.N.Y. Oct. 18, 2006) (Lowe, M.J. adopted by Hurd, J.) (“By failing to respond to Defendants' first argument ... Plaintiff may be deemed to have consented to that argument under Local Rule of Practice 7.1(b)(3). Thus, Plaintiff's claim against those Defendants may be dismissed on that ground alone [provided that] ... Defendants have met their modest threshold burden to demonstrate entitlement to the relief requested in their motion for summary judgment.”); Beers v. GMC, 97–CV–0482, 1999 U.S. Dist. LEXIS 12285, at *27–31 (N.D.N.Y. March 17, 1999) (McCurn, J.) (deeming plaintiff's failure, in his opposition papers, to oppose several arguments by defendants in their motion for summary judgment as consent by plaintiff to the granting of summary judgment for defendants with regard to the claims that the arguments regarded, under Local Rule 7.1[b][3] ). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 275 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Distinguished by Fabrizio v. Smith, N.D.N.Y., March 10, 2021 KeyCite Overruling Risk Overruling Risk Darnell v. Pineiro, 2nd Cir., February 21, 2017 2011 WL 5877550 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Pedro Juan TAVARES, Plaintiff, v. CITY OF NEW YORK; Emanuel Bailey, Warden; Vanessa Singleton, Deputy Warden; Ms. Drain, Captain; Ms. Glover, Captain; Ms. Pennant, Correction Officer; Mr. Jean, Correction Officer, Defendants. No. 08 Civ. 3782(PAE)(JCF). | Oct. 17, 2011. REPORT AND RECOMMENDATION JAMES C. FRANCIS IV, United States Magistrate Judge. *1 TO THE HONORABLE PAUL A. ENGELMAYER, U.S.D.J.: Pedro Juan Tavares, a prison inmate, brings this action pro se pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 against the City of New York (the “City”), George Motchan Detention Center (“GMDC”) Warden Emanuel Bailey, Deputy Warden Vanessa Singleton, Captain Drain, Captain Glover, Correction Officer Pennant, and Correction Officer Jean. 1 The plaintiff alleges that while he was detained at GMDC on Rikers Island, the defendants violated his civil rights by (1) subjecting him to excessive force; (2) failing to intervene during the use of force; (3) failing to train and supervise the assaulting officer; (4) conspiring to cover up the assault, thereby denying him due process and equal protection of the laws; and (5) neglecting to prevent the conspiracy. The plaintiff claims that the defendants either participated in, observed, or approved these unconstitutional acts. Finally, the plaintiff alleges municipal liability on the part of the City of New York and also raises various state law claims. The parties now cross-move for summary judgment. The defendants contend that: (1) the plaintiff's excessive force and conspiracy claims fail as a matter of law; (2) his claims against defendants Warden Bailey, Deputy Warden Singleton, and Officer Pennant must be dismissed for lack of personal involvement; (3) the individual defendants are entitled to qualified immunity; (4) the plaintiff cannot establish a claim for municipal liability against the City; and (5) his state law claims must be dismissed because his notice of claim was untimely. For the reasons set forth below, I recommend that the plaintiff's motion be denied and summary judgment be granted for the defendants. Background The plaintiff's claims arise from an incident that he alleges occurred on the evening of July 17, 2007 during his pretrial detention at GMDC. At approximately 7:20 p.m., Mr. Tavares was returning to his assigned housing unit after picking up his medication. (Amended Complaint (“Am.Compl.”), ¶ 14). The plaintiff claims that while he walked back to his dormitory, Officer Jean ordered him to stop to allow Captain Drain and Officer Pennant to pass by the area. (Am.Compl., ¶ 14). Mr. Tavares alleges that as Officer Jean told him to stop, he raised his left arm and touched the plaintiff's face. (Am.Compl., ¶ 14). Officer Jean “just touched [him], not hit [him],” and Mr. Tavares was not hurt by the contact. (Deposition of Pedro Tavares dated March 10, 2009 (“Tavares Dep.”), attached as Exhibit E to Defendants' Rule 56.1 Statement (“Def. 56.1 Statement”), at 42–43). Mr. Tavares then “verbally reprimanded” Officer Jean, asking why the officer touched his face. (Am. Compl., ¶ 15; Tavares Dep. at 43, 50). According to Mr. Tavares, Officer Jean responded by “throwing [him] up against the wall, spreading [his] legs by kicking [him] harshly on both ... ankles,” and “compressing [his] chest against the wall [such] that plaintiff thought he was going to pas[s] out.” (Am.Compl., ¶ 16). Mr. Tavares claims he was then “maliciously pat frisked and verbally abused” by Officer Jean for several minutes, until Captain Drain commanded Officer Jean to stop and sent the plaintiff to his dormitory. (Plaintiff's Reply to Defendants' Motion for Summary Judgment (“Pl.Reply”), ¶ 11; Am. Compl., ¶¶ 17, 37). Mr. Tavares asserts that Officer Pennant did not speak or otherwise intervene at any time during the incident. (Am.Compl., ¶ 38). In his deposition, Mr. Tavares acknowledged that the difference between this incident and the other hundreds of times he has been frisked in prison is that he was forced to put his hands against the wall and spread his legs, rather than simply being asked to do so. (Tavares Dep. at 56–57). Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 276 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 *2 On July 18, 2007, Mr. Tavares wrote a grievance letter complaining about the incident to the Office of the Inspector General (“OIG”), and sent a copy of the grievance to Warden Bailey. (Am. Compl., ¶ 18; Letter of Pedro Tavares dated July 18, 2007 (“Grievance Letter”), attached as Exh. 9 to Am. Compl.; Def. 56.1 Statement, ¶ 19). Records attached to the plaintiff's Amended Complaint indicate that OIG did not receive his grievance until September 25, 2007. (GMDC Intake Received Record, dated September 28, 2007, attached as Exh. 3 to Am. Compl.; Affidavit of Deputy Warden Mark Scott dated Feb. 12, 2009, attached as Exh. 16 to Am. Compl. (“According to Use of Force Allegation Package # 1394/07, plaintiff did not file a formal complaint with the [Department of Correction of the City of New York (“DOC”) ] Investigation Division pertaining to an alleged Use of Force that took place on July 17, 2007, until September 25, 2007.”)). On October 10, 2007, Captain Glover contacted the plaintiff and requested that he provide a statement on the matter. (Am.Compl., ¶¶ 19, 28). On or around that same date, Captain Glover notified Mr. Tavares that she had completed the investigation and, after interviewing the personnel allegedly involved, determined his grievance had no merit. (Am.Compl., ¶ 20). Mr. Tavares complains that the defendants failed to timely investigate his grievance, based on the 15–day lapse between the OIG intake date and the date he was interviewed by Captain Glover. (Am.Compl., ¶¶ 19, 28, 33). The plaintiff assigns primary responsibility for this delay to Warden Bailey: Mr. Tavares asserts the warden had notice of his grievance prior to September 25 based on the alleged date of its dispatch, but failed to investigate the complaint until notified by OIG. (Am.Compl., ¶¶ 33–34). Mr. Tavares also contends that Warden Bailey and Deputy Warden Singleton conspired to erase security camera footage of the incident. (Pl. Reply at 16). Deputy Warden Singleton's purported culpability stems from her “suspicious[ ]” failure to indicate whether she had reviewed the footage in her report of October 17, 2007, as well as the plaintiff's assertion that she was “the only authority that had immediate access to the monitor room where [the recordings] are kept .” (Am.Compl., ¶¶ 35– 36). Mr. Tavares also alleges that Captain Glover did not ask to review the footage in contravention of DOC Operations Order 12/07 Section IV(E)(1), which directs “the Deputy Warden for Security, or designee, to review the recording, if available, as soon as practical to determine the validity of [a use of force] allegation.” (Am. Compl., ¶ 31; DOC Operations Order 12/07, Recording Equipment/Medium and Electronic Evidence, dated August 13, 2007, attached as Exh. 16 to Am. Compl.). Mr. Tavares also claims that Captain Drain and Officer Pennant later denied witnessing the incident “because there is no video tape to [prove his] allegation.” (Am.Compl., ¶ 39). The plaintiff alleges that the sum of the defendants' actions establish the formation of a conspiracy to “cover up the assault” and “prevent the investigation of it.” (Am.Compl., ¶ 44). He further claims that this conspiracy was undertaken because he is Hispanic, although he alleges no supporting facts. (Am.Compl., ¶ 28). *3 Mr. Tavares reported experiencing physical pain during the alleged assault, though he did not receive any marks or bruises. (Am. Compl., ¶¶ 22–24; Tavares Dep. at 56, 51). In his grievance written the following day, Mr. Tavares' sole complaint regarding any physical harm during the pat frisk concerned his having to put pressure on his left hand, which he had previously injured. (Grievance Letter) (“I have a left hand fracture that [ ] happened on the day and time of my arrest and the last time Officer Jean thr[ew] me against the wall, I landed on my left hand, putting a lot of pressure on it.”). The record of plaintiff's medical examination on October 10, 2007 indicates that, nearly three months after the incident, the plaintiff complained only of pain in his left hand, for which he was provided Motrin as treatment. (DOC Injury to Inmate Report dated October 10, 2007, attached as Exh. 15 to Am. Compl.). Mr. Tavares contends that he now “suffer[s] from [a] lumb- sacral low disc problem on his lower back,” “hip fluid on his left hip,” and “degenerative blunting of the anterosuperior acetabular labra,” as a result of the incident. (Am.Compl., ¶ 25). Although the plaintiff's medical records indicate he has been diagnosed with various back- and hip-related conditions, (Exhs. 10–12, attached to Am. Compl.), he provides no evidence which connects them to the pat frisk. In his deposition, Mr. Tavares admitted that none of the medical professionals who have examined him since July 17, 2007 attribute his conditions to the incident. (Tavares Dep. at 70). Discussion A. Standard for Summary Judgment Summary judgment is appropriate where the record “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285–86 (2d Cir.2002); Andy Warhol Foundation for the Visual Arts, Inc. v. Federal Insurance Co., 189 F.3d 208, 214 (2d Cir.1999). The moving party bears Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 277 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The opposing party then must come forward with “specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where the non-movant fails to make “a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial,” summary judgment must be granted. Celotex, 477 U.S. at 322. In assessing the record to determine whether there is a genuine issue of material fact, the court must resolve all ambiguities and draw all factual inferences in favor of the nonmoving party. Anderson, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vann v. City of New York, 72 F.3d 1040, 1048–49 (2d Cir.1995). But the court must inquire whether “there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party,” Anderson, 477 U.S. at 249 (citation omitted), and grant summary judgment where the nonmovant's evidence is conclusory, speculative, or not significantly probative. See id. at 249–50. “The litigant opposing summary judgment may not rest upon mere conclusory allegations or denials, but must bring forward some affirmative indication that his version of relevant events is not fanciful.” Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 101 (2d Cir.1997) (internal quotations and citations omitted); see also Jeffreys v. City of New York, 426 F.3d 549, 554 (2d. Cir.2005) (“nonmoving parties must do more than simply show that there is some metaphysical doubt as to the material facts, and they may not rely on conclusory allegations or unsubstantiated speculation” (internal quotations and citations omitted)); Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995) (nonmovant “may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible”). In sum, if the court determines that “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’ “ Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968)). *4 Where a litigant is pro se, his pleadings should be read liberally and interpreted “to raise the strongest arguments that they suggest.” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Nevertheless, proceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment, and a pro se party's “bald assertion,” unsupported by evidence, is not sufficient to overcome a motion for summary judgment. Lee v. Coughlin, 902 F.Supp. 424, 429 (S.D.N.Y.1995) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir.1991)); see also Kadosh v. TRW, Inc., No. 91 Civ. 5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994) (“[t]he work product of pro se litigants should be generously and liberally construed, but [the litigant's] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendants' motion ineffectual”); Stinson v. Sheriff's Department of Sullivan County, 499 F.Supp. 259, 262 (S.D.N.Y.1980) (liberal standard accorded to pro se pleadings “is not without limits, and all normal rules of pleading are not absolutely suspended”). B. Section 1983 Claims Civil liability is imposed under 42 U.S.C. § 1983 upon persons who, while acting under color of state law, deprive an individual of rights, privileges, or immunities guaranteed by the Constitution or laws of the United States. 42 U.S.C. § 1983. Section 1983 is not a source of substantive rights, but rather, provides a vehicle for vindicating federal rights conferred elsewhere in the federal statutes and Constitution. See Graham v. Connor, 490 U.S. 386, 393–94, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). As a threshold matter, analysis of a claim brought under Section 1983 begins with identification of the precise constitutional right allegedly violated. See Baker, 443 U.S. at 140. Here, the plaintiff's Section 1983 claims are grounded in the Due Process and Equal Protection Clauses of the Fourteenth Amendment. 1. Excessive Force Although a prisoner's claim that he was subjected to excessive force by prison officials is rooted in the Eighth Amendment's prohibition against cruel and unusual punishments, Mr. Tavares' excessive force claim is analyzed under the Due Process Clause of the Fourteenth Amendment, because it arose while he was held in pretrial detention. See Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir.2009) (“a person detained prior to conviction receives protection against mistreatment at the hands of prison officials under the ... Due Process Clause of the Fourteenth Amendment if held in state custody”); Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 278 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 United States v. Walsh, 194 F.3d 37, 47 (2d Cir.1999). Nonetheless, it is well-established in this Circuit that “an unconvicted detainee's rights are at least as great as those of a convicted prisoner,” Weyant v. Oskt, 101 F.3d 845, 856 (2d Cir.1996) (citing City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)), and, in practice, the analysis “involves the same test as that used to analyze claims by convicted inmates under the Eighth Amendment.” Mayo v. County of Albany, 357 Fed. Appx. 339, 341 (2d Cir.2009); see also Walsh, 194 F.3d at 48. *5 To establish a claim of cruel and unusual punishment cognizable under the Eighth Amendment, an excessive force claimant must satisfy a two-part inquiry consisting of both objective and subjective elements. Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999) (citing Wilson v. Seiter, 501 U.S. 294, 298–99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). The objective element focuses on the harm done in light of “contemporary standards of decency,” Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009), and asks whether “the deprivation alleged is ‘sufficiently serious' or ‘harmful enough’ to reach constitutional dimensions.” Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.1993) (internal citations omitted). Although not dispositive, ‘[t]he absence of serious injury is ... relevant to the Eighth Amendment inquiry.” Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir.2003) (citing Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). The subjective element requires a showing that the defendant “had the necessary level of culpability, shown by actions characterized by ‘wantonness' in light of the particular circumstances surrounding the challenged conduct.” Wright, 554 F.3d at 268 (quoting Blyden, 186 F.3d at 262) (internal quotations omitted)). The ‘wantonness' inquiry turns on “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id. (citing Hudson, 503 U.S. at 7). The Supreme Court has made clear, however, that “[t]he Eighth Amendment's prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort ‘repugnant to the conscience of mankind.’ “ Hudson, 503 U .S. at 9–10 (citations omitted). Therefore, “not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights,” Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973), nor will “every malevolent touch by a prison guard give[ ] rise to a federal cause of action.” Hudson, 503 U.S. at 9. According to the facts alleged by Mr. Tavares, the use of force upon which his Section 1983 claims rest consists of Officer Jean throwing him up against the wall, kicking his legs apart, subjecting him to a forceful pat frisk, and verbally harassing him; and by the failure of Captain Drain and Officer Pennant to intervene and prevent the alleged assault. The plaintiff's description of the incident does not permit a finding that Officer Jean's alleged conduct was “objectively ‘harmful enough’ to establish a constitutional violation.” Hudson, 503 U.S. at 8 (quoting Wilson, 501 U.S. at 298). First, the physical injuries reported by the plaintiff that can fairly be attributed to Officer Jean's alleged conduct are de minimis. Mr. Tavares admits that he was not marked or bruised when his legs were kicked apart, and although he complains of being forcefully “compressed” against the wall, he walked unassisted to his dormitory only moments later. In his grievance letter—written the day after the incident—Mr. Tavares complained about the manner in which Officer Jean executed the pat frisk, but, with respect to his injuries, alleged only that he was forced to put pressure on his previously injured hand. Similarly, the record of the plaintiff's medical examination on October 10, 2007 indicates he complained only of the pain in his left hand. As for Mr. Tavares' unsupported allegations regarding his back- and hip-related conditions, he concedes he cannot set forth any evidence which attributes them to the July 17, 2007 incident. *6 Courts in this Circuit have routinely found such types of minimal injuries and pain insufficiently serious or harmful to satisfy the objective element of the Eighth Amendment analysis. See, e.g., Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir.1997) (inmate's claims that he was “bumped, grabbed, elbowed, and pushed” by prison officials insufficient); James v. Phillips, No. 05 Civ. 1539, 2008 WL 1700125, at *4–5 (S.D.N.Y. April 9, 2008) (finding de minimis use of force when prison guard shoved inmate into door which resulted in swelling of inmate's chin); Virella v. Pozzi, No. 05 Civ. 10460, 2006 WL 2707394, at *3 (S.D.N.Y. Sept.20, 2006) (only de minimis force used where officer swung keys at plaintiff, making contact with his head and causing a bump); Espinal v. Goord, No. 00 Civ. 2242, 2001 WL 476070, at *4, *13 (S.D.N.Y. May 7, 2001) (use of force was de minimis where guard struck plaintiff in face two or three times, causing his face to turn red, but resulting in no other injuries); Yearwood v. LoPiccolo, No. 95 Civ. 2544, 1998 WL 474073, at *1, *7 (S.D.N.Y. Aug. 10, 1998) (finding de minimis use of force where guard choked plaintiff, hit his head with a pair of Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 279 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 keys, and punched him in the lip); Show v. Patterson, 955 F.Supp. 182, 192–93 (S.D.N.Y.1997) (only de minimis force used where officer pushed inmate against wall); Gonzalez v. Coughlin, No. 92 Civ. 7263, 1996 WL 496994, at *4–5 (S.D.N.Y. Aug.21, 1996) (finding no excessive use of force where plaintiff alleged corrections officers tripped him to the ground and hit him in the knee); DeArmas v. Jaycox, No. 92 Civ. 6139, 1993 WL 37501, at *4 (S.D.N.Y. Feb.8, 1993) (finding de minimis use of force where inmate suffered a bruise and injured right knee after being punched and kicked once). Second, conducting pat frisks on prisoners is a necessary procedure to ensure safety and security of prisons, and correction officers are authorized to “conduct random pat frisks on free movement inmates going to or coming from services and programs” pursuant to DOC policy. (Operations Order # 35/90, Random Pat Frisk Program, dated October 18, 1990, attached as Exh. F to Def. 56.1 Statement). Even assuming that the pat frisk was conducted in response to the plaintiff's “verbal[ ] reprimand[ ]” of Officer Jean, the amount of force used in the course of conducting the pat frisk does not rise to the level of a constitutional violation. Again, case law reflects that actions taken consistent with a forceful pat frisk—the most serious contact alleged by the plaintiff—are not sufficiently “repugnant to the conscience of mankind,” Hudson, 503 U.S. at 10, to give rise to an Eighth Amendment claim. See, e.g., Kalwasinski v. Artuz, No. 2 Civ. 2582, 2003 WL 22973420 (S.D.N.Y. Dec.18, 2003) (finding claim that guard used excessive force when he pressed inmate's face into the wall during a pat frisk after inmate had been arguing with him insufficient to survive summary judgment); Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460, 471 (S.D.N.Y.1998) (“although kicking an inmate's ankles and feet [during a pat frisk] cannot be condoned, this use of force is de minimus and insufficient to rise to the level of a constitutional violation”); Candeleria v. Coughlin, 787 F.Supp. 368, 374–75 (S.D.N.Y.1992) (finding guard's action of pushing his fist against inmate's neck as he obtained inmate's identification card was de minimis ); Anderson v. Sullivan, 702 F.Supp. 424, 427 (S.D.N.Y.1988) (excessive force claim dismissed where prison officials pushed inmate into bar and put his hands behind his back to apply handcuffs, in that such actions were reasonably related to the application of restraints, and incident resulted in little or no harm to inmate). *7 Finally, absent a showing of actionable injury, Mr. Tavares' claim that Officer Jean verbally harassed him while conducting the pat frisk fails to establish an Eighth Amendment violation. See, e.g., Aziz Zarif Shabazz, 994 F.Supp. at 474 (“verbal harassment or profanity alone, unaccompanied by any injury, no matter how inappropriate, unprofessional, or reprehensible it might seem, does not constitute the violation of any federally protected right and is therefore not actionable”) (internal citations and quotations omitted); Brown v. Croce, 967 F.Supp. 101, 104 (S.D.N.Y.1997) (citing Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.1986) (holding that a claim that a prison guard called an inmate names did not allege any appreciable injury and was properly dismissed)); Malsh v. Austin, 901 F.Supp. 757, 763 (S.D.N.Y.1995) ( “[v]erbal assault, standing alone, is not a judicially cognizable injury in a § 1983 civil rights action”) (internal quotations omitted). In sum, neither Mr. Tavares' pleadings, deposition testimony, nor any other evidentiary material in the record reveal that he suffered any harm other than a few minutes of verbal abuse, unwanted pat-frisking, and the resulting pressure on his previously injured hand; such injuries are de minimis, and do not give rise to an action under Section 1983. Because the plaintiff cannot satisfy the objective element of the excessive force standard, Officer Jean is entitled to summary judgment on this claim. 2. Failure to Intervene Mr. Tavares further contends that Captain Drain and Officer Pennant had an affirmative duty to intervene to protect his Eighth Amendment rights from being infringed, and that as a result of their failure to do so, he suffered the unlawful assault. (Plaintiff's Memorandum of Law in Support of His Motion for Summary Judgment (“Pl.Memo.”), dated April 25, 2011, at 16–19, 27). “A law enforcement officer has an affirmative duty to intercede on behalf of a citizen whose constitutional rights are being violated in his presence by other officers.” O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir.1988). “An officer who fails to intercede is liable for the preventable harm caused by the actions of the other officers where that officer observes or has reason to know that excessive force is being used, ... [or] that any constitutional violation has been committed by a law enforcement official.” Anderson v. Branen, 17 F.3d 552, 557 (2d Cir.1994) (citing O'Neill, 839 F.2d at 11–12). There can be no failure to intervene, however, where there was no constitutional violation. Feinberg v. City of New York, No. 99 Civ. 12127, 2004 WL 1824373, at *4 (S.D.N.Y. Aug.13, 2004) (“If the Court determines that the officer's Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 280 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 conduct did not violate a constitutional right, however, the analysis ends.”) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)); accord Foy v. City of New York, No. 03 Civ. 7318, 2004 WL 2033074, at *3 (S.D.N.Y. Sep.10, 2004). As the use of force by Officer Jean was not unlawful, there was no duty to intervene. Therefore, the plaintiff's Section 1983 claims against Captain Drain and Officer Pennant are fatally deficient as well, and summary judgment must be granted to the defendants on this claim. C. Conspiracy Claims *8 Mr. Tavares also asserts that the defendants conspired to “cover up the assault” and “prevent the investigation of it” in violation of his right to equal protection of the laws, and his due process right to “present evidence on his defense,” which is construed as a claim of denial of access to the courts. 2 (Am. Compl., ¶ 44; Pl. Reply at 16). The plaintiff pursues these claims under 42 U.S.C. §§ 1983, 1985, and 1986. (Am.Compl., ¶ 44). 1. Section 1983 Conspiracy To state a claim for conspiracy under § 1983, a plaintiff must demonstrate (1) an agreement between two or more state actors or a state actor and a private party, (2) to act in concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of that goal causing damages. See Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 (2d Cir.2002); Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.1999). Thus, the plaintiff must include allegations or competent evidence to show “that defendants acted in a willful manner, culminating in an agreement, understanding or meeting of the minds that violated [his] rights, privileges, or immunities secured by the Constitution or federal courts.” Hameed v. Pundt, 964 F.Supp. 836, 839 (S.D.N.Y.1997) (internal citation and quotation marks omitted); Katz v. Morgenthau, 709 F.Supp. 1219, 1231 (S.D.N.Y.1989), rev'd in part on other grounds, 892 F.2d 20 (2d Cir.1989). “Without such a meeting of the minds, the independent acts of two or more wrongdoers do not amount to a conspiracy.” National Congress for Puerto Rican Rights v. City of New York, 75 F.Supp.2d 154, 168 (S.D.N.Y.1999) (internal citations omitted). However, “complaints containing only conclusory, vague, or general allegations that the defendants have engaged in a conspiracy to deprive the plaintiff of his constitutional rights are properly dismissed; diffuse and expansive allegations are insufficient, unless amplified by specific instances of misconduct.” Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993) (citing Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir.1977) (internal quotations and alterations omitted)). Mr. Tavares alleges that (1) Warden Bailey received notice of his grievance prior to the date it was received by OIG, but chose not to investigate until on or about October 10; (2) Warden Bailey and Deputy Warden Singleton agreed to erase the security camera footage of the incident; and (3) following destruction of the footage, Warden Bailey, Deputy Warden Singleton, Captain Glover, Captain Drain, and Officer Pennant conspired to cover up the alleged assault. (Pl. Reply at 15–16). In particular, the plaintiff alleges that Captain Glover violated DOC policy by failing to view the security video footage during her investigation, and Captain Drain and Officer Pennant denied witnessing the incident to excuse their intentional failure to file an incident report. (Pl. Memo. at 26–27). *9 Aside from these conclusory allegations, Mr. Tavares has not presented evidence that there was any agreement or “meeting of the minds” between the defendants to violate his constitutional rights. Since “an essential element in a claim of conspiracy ... is an agreement to do so among the alleged co-conspirators,” National Congress for Puerto Rican Rights, 75 F.Supp.2d at 168, the plaintiff's conclusory assertions of a conspiratorial agreement cannot withstand summary judgment. Equally important, Mr. Tavares' conspiracy claim fails because he cannot state a claim that his rights were violated as a result of the defendants' conduct. See Romer v. Morgenthau, 119 F.Supp.2d 346, 363 (S.D.N.Y.2000) (“if a plaintiff cannot sufficiently allege a violation of his rights, it follows that he cannot sustain a claim of conspiracy to violate those rights”). In this case, the right alleged to be violated by the conspiracy is his right of access to the courts. “The right of access to the courts ... assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.” Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). To state a Section 1983 claim for violation of the right to access the courts, a plaintiff must allege facts which indicate that (1) the defendants “deliberately and maliciously interfered” with his access; and that (2) this conduct “materially prejudiced a legal action he sought to pursue,” Smith v. O'Connor, 901 F.Supp. 644, 649 (S.D.N.Y.1995), “such as the dismissal of an otherwise Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 281 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 meritorious legal claim.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir.2003) (citations omitted). The Supreme Court has held that “the right [of access to the courts] is ancillary to the underlying claim, without which a plaintiff could not have suffered injury by being shut out of court.” Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002). To satisfy the injury requirement, therefore, the plaintiff must identify a separate, “ancillary” legal claim that has been materially prejudiced by the alleged denial, and that is “non-frivolous” and “arguable” in nature. Id.; see also Cancel v. Goord, No. 00 Civ.2042, 2001 WL 303713, at *4 (S.D.N.Y. March 29, 2001) (“the plaintiff must show that a non-frivolous legal claim had been frustrated or was being impeded due to the actions of prison officials”) (internal citations and quotation marks omitted). In this case, Mr. Tavares cannot demonstrate that any conduct by the defendants resulted in an actionable injury. He alleges that the defendants prevented him from presenting evidence —most critically, the security video footage of the incident —that would establish the allegedly unlawful assault by Officer Jean. However, the footage Mr. Tavares seeks to introduce would merely corroborate his own allegations; yet his underlying excessive force claim fails even on the facts as he alleges them. Therefore, even assuming the defendants conspired to erase the video footage as the plaintiff claims, he suffered no material prejudice as a result. Thus, because the actual violation of a constitutional right is a “natural prerequisite to a claim of conspiracy to violate such right,” Romer, 119 F.Supp.2d at 363, the plaintiff's conspiracy claim regarding denial of access fails. Accordingly, summary judgment must be granted to defendants on this claim. 3 2. Sections 1985 and 1986 *10 Section 1985(3) prohibits conspiracies that are intended to deprive “either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.” 42 U.S.C. § 1985(3). To sustain a claim under Section 1985(3), a plaintiff must demonstrate “some racial, or perhaps otherwise class- based, invidiously discriminatory animus lay behind the conspirators' actions.” Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 267–68, 113 S.Ct. 753, 122 L.Ed.2d 34 (1993) (citing Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971)). Section 1986 provides a cause of action against anyone who “having knowledge that any of the wrongs conspired to be done and mentioned in Section 1985 are about to be committed and having power to prevent or aid, neglects to do so.” Mian v. Donaldson, Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1088 (2d Cir.1993) (internal citation and quotation marks omitted). Thus, a Section 1986 claim must be predicated upon a valid Section 1985 claim. Id. (citing Dacey v. Dorsey, 568 F.2d 275, 277 (2d Cir.1978)); Brown v. City of Oneonta, New York, 221 F.3d 329, 341 (2d Cir.2000). Although Mr. Tavares alleges that the purported conspiracy was undertaken by the defendants because he is Hispanic, he has alleged no facts and offered no evidence to show that racially discriminatory animus motivated the purported conspiracy. Furthermore, any claim of conspiracy, whatever the motivation, fails for the reasons discussed above. Summary judgment should therefore be granted to the defendants on these claims. D. Municipal Liability Mr. Tavares next seeks to hold the City liable under Section 1983 on the basis of the defendants' alleged failure to train and supervise Officer Jean, as well as its “approv[al] or ratifi[cation]” of the defendants' allegedly unlawful conduct. Municipalities may be held liable under Section 1983 if “action pursuant to official municipal policy of some nature caused a constitutional tort.” Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipal liability may also arise where policymaking officials exhibit deliberate indifference to constitutional deprivations caused by subordinates, effectively ratifying the conduct. See, e.g., Amnesty America v. Town of West Hartford, 361 F.3d 113, 127 (2d Cir.2004). As a threshold matter, to survive summary judgment on a Section 1983 municipal liability claim, the plaintiff must be able to show that his constitutional rights were violated by prison officials. See Matican v. City of New York, 524 F.3d 151, 154 (2d Cir.2008). If no constitutional violation has occurred, the municipality cannot be liable under Section 1983, regardless of whether the officers acted pursuant to a municipal policy or custom. Id. at 154 (municipal liability precluded where police officers' actions did not violate plaintiff's constitutional rights) (citing City of Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986)); see also Martinez v. City of New York, 340 Fed. Appx. 700, 702 (2d Cir.2009) (“A municipality cannot be liable for acts by its employees which are not constitutional Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 282 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 violations.”) (internal citation omitted); Bonilla v. Jaronczyk, 354 Fed. Appx. 579, 582 (2d Cir.2009) (individual liability of corrections officers was prerequisite for municipal liability to arise from allegations that inmate's constitutional rights were violated). Similarly, “a municipality cannot be liable for inadequate training or supervision when the officers involved ... did not violate the plaintiff's constitutional rights.” Curley v. Village of Suffern, 268 F.3d 65, 71 (2d Cir.2001) (citing Amato v. City of Saratoga Springs, 170 F.3d 311, 320 (2d Cir.1999) (“a claim of negligent training is only actionable where some constitutional violation actually occurred”)); Ricciuti v. New York City Transit Authority, 124 F.3d 123, 132 (2d Cir.1997) (“a claim of inadequate training and supervision under § 1983 cannot be made out against a supervisory body without a finding of a constitutional violation by the persons supervised”). *11 Because Mr. Tavares cannot show that any of his constitutional rights were violated by the individual defendants, he cannot maintain his Section 1983 claims against the City of New York. E. State Law Claims Because the defendants' motion for summary judgment as to all federal claims should be granted, the Court should decline to exercise supplemental jurisdiction over the plaintiff's state law claims against the defendants. See 28 U.S.C. § 1367(c) (3). Conclusion For the reasons set forth above, I recommend that the plaintiff's motion for summary judgment be denied, and the defendants' motion for summary judgment be granted in all respects. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable Paul A. Engelmayer, U.S.D.J., Room 670, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review. All Citations Not Reported in F.Supp.2d, 2011 WL 5877550 Footnotes 1 The parties have not provided the first names of defendants Drain, Glover, Pennant, or Jean. 2 The Supreme Court has grounded the right of access to the courts in the Fourteenth Amendment Due Process Clause, Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); Boddie v. Connecticut, 401 U.S. 371, 380–81, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971), and Equal Protection Clause, Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), the Fifth Amendment Due Process Clause, Walters v. National Association of RadiationSurvivors, 473 U.S. 305, 335, 105 S.Ct. 3180, 87 L.Ed.2d 220 (1985), the First Amendment Petition Clause, Bill Johnson's Restaurants, Inc. v. NLRB, 461 U.S. 731, 741, 103 S.Ct. 2161, 76 L.Ed.2d 277 (1983); California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 513, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972), and the Article IV Privileges and Immunities Clause, Chambers v. Baltimore & Ohio Railroad Co., 207 U.S. 142, 148, 28 S.Ct. 34, 52 L.Ed. 143 (1907). 3 In the plaintiff's memorandum in support of his motion for summary judgment, he alleges in the alternative that the defendants have committed spoliation of evidence, and he seeks an adverse inference sanction. However, his spoliation claim fails on the same grounds as his denial-of-access claim: because his excessive force claim fails based on his own allegations, an adverse inference would be of no benefit. End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 283 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2011 WL 5877548 Only the Westlaw citation is currently available. United States District Court, S.D. New York. Pedro Juan TAVARES, Plaintiff, v. CITY OF NEW YORK; Emanuel Bailey, Warden; Vanessa Singleton, Deputy Warden; Ms. Drain, Captain; Ms. Glover, Captain; Ms. Pennant, Corrections Officer; Mr. Jean, Corrections Officer, Defendants. No. 08 Civ. 3782(PAE). | Nov. 23, 2011. OPINION AND ORDER PAUL A. ENGELMAYER, District Judge. *1 Plaintiff Pedro Juan Tavares, proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 against the City of New York, Warden Emanuel Bailey, Deputy Warden Vanessa Singleton, Captain Drain, Captain Glover, Correction Office Pennant, and Correction Officer Jean (collectively, the “City Defendants”). In his amended complaint, Plaintiff alleges that each of these defendants violated several of his constitutional rights while he was detained at the George Motchan Detention Center (GMDC) on Riker's Island. Judge Jed S. Rakoff, to whom this case was originally assigned, referred the action to Magistrate Judge James C. Francis for general pretrial proceedings. The City Defendants and Tavares have crossmoved for summary judgment. On October 17, 2011, Judge Francis issued his Report and Recommendation pursuant to 28 U.S.C. § 636(b), recommending that the Court deny Plaintiff's motion and grant the City Defendants' motion. Plaintiff has filed objections to Judge Francis's Report and Recommendation. DISCUSSION The Court refers the reader to the Report and Recommendation for the background of the case, the facts, and the applicable law. In view of Plaintiff's objections, the Court sets forth the following brief analysis. I. Standard of Review In reviewing a Report and Recommendation, a district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b) (1)(C). When specific objections are made, “[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3); see also Rivera v. Barnhart, 423 F.Supp.2d 271, 273 (S.D.N.Y.2006). It is not required, however, that the Court conducts a de novo hearing on the entire matter. See United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). Rather, it is sufficient that the Court “arrive at its own, independent conclusion” regarding those portions to which objections were made. Nelson v. Smith, 618 F.Supp. 1186, 1189–90 (S.D.N.Y.1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983)). To accept those portions of the report to which no timely objection has been made, “a district court need only satisfy itself that there is no clear error on the face of the record.” King v. Greiner, No. 02–CV–5810, 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) (citation omitted); see also Wilds v. United Parcel Serv., 262 F.Supp.2d 163, 169 (S.D.N.Y.2003). Thus, as to Plaintiff's objections relating to the City Defendants' motion for summary judgment, de novo review requires application of the summary judgment legal standard. II. Summary Judgment Standard It is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285–86 (2d Cir.2002). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, see Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752, 754 (2d Cir.1976), the Court should not grant summary judgment unless “it is quite clear what the truth is [and] that no genuine issue remains for trial.” Auletta v. Tully, 576 F.Supp. 191, 195 (N.D.N.Y.1983) (internal quotation marks and citations omitted), aff'd, 732 F.2d 142 (2d. Cir.1984). In addition, “ ‘the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.’ “ Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587–88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 284 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir.1999) (stating that “[w]hen considering a motion for summary judgment the court must draw all factual inferences and resolve all ambiguities in favor of the nonmoving party”). *2 Once the moving party discharges its burden of proof under Rule 56(c), the party opposing summary judgment “has the burden of coming forward with ‘specific facts showing that there is a genuine issue for trial.’ “ Phillips v. Kidder, Peabody & Co., 782 F.Supp. 854, 858 (S.D.N.Y.1991) (quoting Fed.R.Civ.P. 56(e)). Rule 56(e) “provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 256. Indeed, “the mere existence of some alleged factual dispute between the parties” alone will not defeat a properly supported motion for summary judgment. Id. at 247 (emphasis in original). Rather, enough evidence must favor the non-moving party's case such that a jury could return a verdict in its favor. Id. at 248. III. Plaintiff's Objections A. New Evidence Offered in the Objections The Court notes that, in his objection to the magistrate's Report, Plaintiff makes new claims and alleges new facts. First, Plaintiff asserts that, although he had admitted in his deposition that none of the medical professionals who examined him following the alleged incident attributed his conditions to the incident, he now has identified a doctor “who will testify in trial that the injuries suffered ... are attributed to the incident of July 17, 2007.” Pl. Obj. at 4 (Dkt.74). Second, Plaintiff offers a conclusory explanation as to why none if the earlier examining physicians had attributed his condition to the incident; he claims that the doctors who treated him during his detention at the GMDC “did not want to loose [sic] their job[s], since they work for a medical corporation that is under contract by the City of New York.” Id. at 5. Courts generally do not consider new evidence raised in objections to a magistrate judge's report and recommendation. See Feehan v. Feehan, No. 09–cv–7016, 2011 WL 3734079, at *2 (S.D.N.Y. Sept. 22, 2010) (“it is inappropriate for the Court to consider new evidence upon review of a Magistrate's Report and Recommendation, when Parties had an opportunity fully to brief their Cross–Motions before the Magistrate”). Because Plaintiff failed to submit his evidence to the magistrate judge during the nearly six months between the filing of the instant motion and the preparation of Judge Francis's Report and Recommendation, Plaintiff's untimely- submitted evidence is not properly before this Court. See, e.g., Pan Am. World Airways v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir.1990) (“A district judge is not required to hear or rehear any witness, and Pan Am had no right to present further testimony when it offered no justification for not offering the testimony at the hearing before the magistrate.”) (citation omitted); Abu–Nassar v. Elders Futures, No. 88– cv–7906, 1994 WL 445638, at *4 n. 2 (S.D.N.Y. Mar.18, 1994) (“In their Objections to the Report plaintiffs contend that Elders indeed terminated the Agreement in bad faith, and plaintiffs cite record evidence. These arguments were not raised before Magistrate Judge Dolinger, and are not submitted as objections but as new arguments. Accordingly, plaintiffs' arguments and evidence are untimely. If the Court were to consider formally these untimely contentions, it would unduly undermine the authority of the Magistrate Judge by allowing litigants the option of waiting until a Report is issued to advance additional arguments.”) (citations omitted); Ramos v. Johnson, No. 09–cv–0899, 2011 WL 807430, at *2 (N.D.N.Y. Mar.2, 2011) (“To the extent that Plaintiff's Objections seek to reopen discovery, add additional claims, name additional parties, or excuse his non-response to Defendants' Motion for summary judgment, they are improper, untimely, and, in any event, wholly conclusory and insufficient to survive summary judgment.”) (footnote omitted) (citing Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Accordingly, the Court has given these untimely and conclusory submissions no consideration. B. Excessive Force *3 Although Plaintiff's claim of excessive force arose out of an incident that occurred during pretrial detention, and thus is analyzed under the Due Process Clause of the Fourteenth Amendment, in practice that analysis utilizes the same standard as claims by convicted prisoners under the Eight Amendment. See Mayo v. County of Albany, 357 F. App'x 339, 341 (2d Cir.2009). Thus, to survive the summary judgment motion, the excessive force claim must satisfy the two-part inquiry of Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir.1999) (citing Wilson v. Seiter, 501 U.S. 294, 298–99, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)), to wit, (1) that the force used objectively violates “contemporary standards of decency,” Wright v. Goord, 554 F.3d 255, 268 (2d Cir.2009) (citation omitted), and (2) that the defendant has the necessary subjective degree of culpability. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 285 of 300
Tavares v. City of New York, Not Reported in F.Supp.2d (2011) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 Even viewed in the light most favorable to Plaintiff, the facts he alleged in the amended complaint and reiterated in the Objections to Judge Francis's Report and Recommendation do not permit a finding that the conduct was “objectively ‘harmful enough’ to establish a constitutional violation.” Hudson v. McMillian, 503 U.S. 1, 8, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992) (citation omitted). In fact, this Court has held that a forceful pat frisk, which Judge Francis correctly observed is the most serious physical contact that the Plaintiff alleges in his amended complaint, does not constitute excessive force under the Eighth Amendment and is insufficient to survive summary judgment. See Kalwasinski v. Artuz, No. 02–cv–2582, 2003 WL 22973420 (S.D.N.Y. Dec.18, 2003). Accordingly, Plaintiff's objection to Judge Francis's finding—that injuries sustained are at most de minimis and do not give rise to a colorable action under Section 1983—is without merit. C. Conspiracy In his objections to the Report, Plaintiff reiterates his claim that the defendants conspired to prevent the investigation of the alleged incident by destroying relevant security camera footage. Plaintiff further reasserts that if the footage from the security camera were available, it would supply the evidence necessary to establish the elements of a claim under 42 U.S.C. §§ 1983, 1985, and 1986. This objection is also without merit. First, Plaintiff does not demonstrate that an agreement was made between two or more state actors or a state actor and a separate private party to inflict an unconstitutional injury, or that an overt act was completed in furtherance of that goal. See Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 (2d Cir.2002). Thus, Plaintiff does not satisfy the elements of a conspiracy claim under Section 1983. Conclusory allegations regarding alleged bad acts are insufficient. See Dwares v. City of New York, 985 F.2d 94, 100 (2d Cir.1993). Second, Judge Francis correctly states that the footage that the Plaintiff seeks to introduce would, at best, support the allegations that Plaintiff has already made. Even viewed in the light most favorable to Plaintiff, the allegations in Plaintiff's amended complaint are insufficient to survive the defendants' summary judgment motion. CONCLUSION *4 Careful review of the Report reveals that there is no facial error in its conclusions. Pursuant to 28 U.S.C. § 636(b)(1), this Court made a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon such review, and after reviewing the submissions, the Court adopts the Report and Recommendation in all respects. Accordingly, the Court grants summary judgment to the Defendants. The Clerk of the Court is directed to enter final judgment and to close item number 69 on the docket of this case. In addition, the Court declines to issue a certificate of appealability. Plaintiff has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir.2005). The Court also finds pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). SO ORDERED. All Citations Not Reported in F.Supp.2d, 2011 WL 5877548 End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 286 of 300
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2016 WL 3349316 Only the Westlaw citation is currently available. United States District Court, N.D. New York. Michel TOLIVER, Plaintiff, v. J. STEFINIK, Correction Officer, Shawangunk Correctional Facility; J. Gardner, Lieutenant Hearing Officer, Shawangunk Correctional Facility; Stone, Corrections Officer, Shawangunk Correctional Facility; Aube, Sgt. in House Unit, Shawangunk Correctional Facility; Gaye (John Doe), Corrections Officer, Shawangunk Correctional Facility; Keys, Corrections Officer, Shawangunk Correctional Facility; L. Pingott, Captain (Security), Shawangunk Correctional Facility; D. Degraff, Corrections Officer, Shawangunk Correctional Facility; Sergeant Preston, Sergeant Corrections, Shawangunk Correctional Facility; R. Cutler, Corrections Officer, Shawangunk Correctional Facility; Budziszewski, Corrections Officer, Shawangunk Correctional Facility; R. Kane, Corrections Officer, Shawangunk Correctional Facility; C.O. North; J. Peterson, Defendants. 9:12-CV-00077 | Signed 06/15/2016 Attorneys and Law Firms MICHEL TOLIVER, 464 Hudson Street, #222, New York, New York 10014, Plaintiff Pro Se. OFFICE OF THE NEW YORK, STATE ATTORNEY GENERAL, The Capitol, OF COUNSEL: CATHY Y. SHEEHAN, AAG, Albany, New York 12224, Attorneys for Defendants. MEMORANDUM-DECISION AND ORDER Mae A. D'Agostino, U.S. District Judge *1 On January 17, 2012, Plaintiff commenced this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that twenty employees of the New York State Department of Corrections and Community Supervision (“DOCCS”) violated his constitutional rights during his confinement at the Shawangunk Correctional Facility (“Shawangunk”). See Dkt. No. 1. By Decision and Order dated May 3, 2012, this Court dismissed, sua sponte, Defendants Schneiderman, Bellamy, and Prack from the action because the complaint did not state facts suggesting their personal involvement in the alleged violations of Plaintiff's constitutional rights. See Dkt. No. 9 at 8-10. On June 28, 2012, Plaintiff filed an amended complaint (Dkt. No. 27), which, by Decision and Order dated December 6, 2012 (Dkt. No. 85), this Court accepted for filing against seventeen of the original Defendants, as well as Correction Officer (“C.O.”) North, who was not named in the original complaint. Liberally construed, the surviving claims in Plaintiff's amended complaint include (1) a First Amendment claim, based on Defendants' alleged filing of false misbehavior reports against Plaintiff, in retaliation for his pursuit of complaints, grievances, appeals, and Article 78 actions; (2) an equal protection claim based on alleged discrimination against Plaintiff because of his race, disability, and/or sexual orientation; (3) a conspiracy claim related to the retaliation and discrimination claims; (4) a Fourteenth Amendment claim alleging denial of procedural due process in connection with various disciplinary proceedings; and (5) an Eighth Amendment claim for failure to provide adequate medical care. Dkt. No. 27 at 8-9; Dkt. No. 35. Plaintiff seeks both monetary and injunctive relief. Dkt. No. 27 at 14. Defendants filed a motion, pursuant to Fed. R. Civ. P. 12(b)(6), seeking dismissal of Plaintiff's amended complaint in its entirety, on behalf of all but one of the remaining Defendants. 1 See Dkt. No. 134. Plaintiff responded to the motion to dismiss, and defense counsel chose not to file a reply. Dkt. No. 150. On November 17, 2014, Magistrate Judge Baxter issued a Report-Recommendation recommending that the Court grant-in-part and deny-in-part Defendants' motion to dismiss. Dkt. No. 155. This Court adopted Magistrate Judge Baxter's November 17, 2014 Report-Recommendation, dismissing Plaintiff's conspiracy claim and all claims against Defendants Fischer, Maly, and LeClaire. This Court has previously found that, in litigating this case, Plaintiff has made numerous abusive and frivolous filings, which have included more than twenty motions, for preliminary injunctive relief, eight motions to amend Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 287 of 300
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 the amended complaint, several requests for sanctions, repeated motions to compel discover seeking evidence which is clearly irrelevant to the matter at hand, numerous motions for reconsideration of the Court's denials of Plaintiff's frivolous motions, and countless appeals to this Court of Magistrate Judge Baxter's denials of his frivolous requests. *2 See Dkt. No. 233. Since Defendants filed their summary judgment motion, Plaintiff has filed several additional motions to amend or supplement his amended complaint, which this Court denied as frivolous, vexatious, and in clear contravention of repeated notices to Plaintiff “that the Court will not permit [him] to amend the amended complaint in this now four-year old case.” See Dkt. Nos. 244, 246. Plaintiff filed two Interlocutory Appeals both of which were dismissed by the Second Circuit. See Dkt. Nos. 252, 256. On March 22, 2016, Magistrate Judge Andrew T. Baxter issued a Report-Recommendation recommending that Defendants' summary judgment motion be granted in full. 2 See Dkt. No. 249. Specifically, Magistrate Judge Baxter found that Plaintiff's retaliation, equal protection, and Eight Amendment medical indifference claims should be dismissed without prejudice for failure to exhaust all available administrative remedies. See id. Further, Magistrate Judge Baxter recommended dismissing Plaintiff's procedural due process claims with prejudice because Plaintiff's factual allegations failed to implicate a liberty interest that would warrant due process protection. Currently before this Court is Magistrate Judge Baxter's Report-Recommendation, to which neither party has objected. I. DISCUSSION A. Standard When a party files specific objections to a magistrate judge's report-recommendation, the district court “make[s] a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). However, when a party files “[g]eneral or conclusory objections, or objections which merely recite the same arguments [that he] presented to the magistrate judge,” the court reviews those recommendations for clear error only. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *2 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted). After the appropriate review, “the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C). A litigant's failure to file objections to a magistrate judge's report-recommendation, even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, “[a]s a rule, a party's failure to object to any purported error or omission in a magistrate judge's report waives further judicial review of the point”) (citation omitted). A pro se litigant must be given notice of this rule; notice is sufficient if it informs the litigant that the failure to timely object will result in the waiver of further judicial review and cites pertinent statutory and civil rules authority. See Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report-recommendation does not waive his right to appellate review unless the report explicitly states that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure). *3 In the present matter, Magistrate Judge Baxter provided Plaintiff adequate notice that he was required to file any objections to the Report-Recommendation, and specifically informed him that failure to object to any portion of the report would preclude his right to appellate review. See Dkt. No. 249 at 26. Specifically, Magistrate Judge Baxter informed Plaintiff that “FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN 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.” Dkt. No. 249 at 26. Magistrate Judge Baxter clearly provided Plaintiff with sufficient notice of the consequences of failing to object to the Report-Recommendation. Although Plaintiff requested and was granted two extensions of time to file objections, no objections have been filed. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 288 of 300
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and, based on the undisputed facts, judgment for the movant is warranted as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court “cannot try issues of fact; it can only determine whether there are issues to be tried.” Id. at 36-37 (quotation and other citation omitted). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed. R. Civ. P. 56(c) (e)). In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)) (other citations omitted). Where the non-movant either does not respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment “would derogate the truth-finding functions of the judicial process by substituting convenience for facts”). “[I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to ‘formal pleadings drafted by lawyers.’ ” Govan v. Campbell, 289 F. Supp. 2d 289, 295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to “make reasonable allowances to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a legal education. Id. at 295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). “However, this does not mean that a pro se litigant is excused from following the procedural requirements of summary judgment.” Kotler v. Fischer, No. 9:09-CV-01443, 2012 WL 929823, *12 (N.D.N.Y. Mar. 19, 2012) (citations omitted). Specifically, “a pro se party's ‘bald assertion,’ completely unsupported by evidence is not sufficient to overcome a motion for summary judgment.” Lee v. Coughlin, 902 F. Supp. 424, 429 (S.D.N.Y. 1995) (citing Cary v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)). B. Exhaustion *4 The Prison Litigation Reform Act (“PLRA”) states that “[n]o action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), 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. § 1983; 42 U.S.C. § 1997e(a). This exhaustion requirement applies to all suits brought by inmates regarding aspects of prison life. See Porter v. Nussle, 534 U.S. 516, 532 (2002). Inmates must exhaust all available administrative remedies even if they are seeking only money damages that are not available in prison administrative proceedings. Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004). The failure to exhaust is an affirmative defense that must be raised by the defendants and, as such, it is the defendants' burden to establish that the plaintiff failed to meet the exhaustion requirements. Jones v. Bock, 549 U.S. 199, 216 (2007); Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004); see, e.g., Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009) (citations omitted). The Supreme Court has held that in order to properly exhaust an inmate's administrative remedies, the inmate must complete the administrative review process in accordance with the applicable state rules. Jones, 549 U.S. at 218-19 (citing Woodford v. Ngo, 548 U.S. 81 (2006)). In Woodford, the Court held that “proper” exhaustion means that the inmate must complete the administrative review process in accordance with the applicable procedural rules, including deadlines, as a prerequisite to bringing suit in federal court. Woodford, 548 U.S. at 90-103. New York State has a three-step administrative review process. First, a grievance is submitted to the Inmate Grievance Resolution Committee (“IGRC”) which reviews and investigates the formal complaint before issuing a written determination. See 7 N.Y.C.R.R. § 701.5(b). Second, an adverse decision by the IGRC may be appealed to the Superintendent of the Facility. See id. at § 701.5(c). Third, an adverse decision by the Superintendent may be appealed to Central Office Review Committee (“CORC”), which makes the final determination within the administrative review process. See id. at § 701.5(d). If all three of these levels of review are exhausted, then the prisoner may seek relief in federal court pursuant to § 1983. See Bridgeforth v. DSP Bartlett, 686 F. Supp. 2d 238, 239 (W.D.N.Y. 2010) (citing Porter, 534 U.S. at 524); Singh v. Goord, 520 F. Supp. 2d 487, 495-96 (S.D.N.Y. 2007) (quoting Hemphill v. New Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 289 of 300
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 York, 380 F.3d 680, 686 (2d Cir. 2004)). When a plaintiff presents a claim arising “directly out of a disciplinary or administrative segregation hearing ... (e.g., a claim of denial of procedural due process), he exhausts his administrative remedies by presenting his objections in the administrative appeals process, not by filing a separate grievance instead of or in addition to his ordinary appeal.” Sweet v. Wende Corr. Facility, 514 F. Supp. 2d 411, 413 (W.D.N.Y. 2007) (internal quotation and citations omitted); see also Davis v. Barrett, 576 F.3d 129, 131-32 (2d Cir. 2009). To the extent a civil rights claim must be exhausted by the grievance process, completion of the three-tiered process, through and including a final decision by CORC, must be completed before an action asserting that claim may be initially filed. See, e.g., Casey v. Brockley, No. 9:13-CV-1271, 2015 WL 8008728, *5 (N.D.N.Y. Nov. 9, 2015) (“Receiving a decision from CORC after commencing litigation does not satisfy PLRA's requirement that administrative remedies be exhausted before filing suit, and any claim not exhausted prior to commencement of the suit must be dismissed without prejudice”) (citing Neal v. Goord, 267 F.3d 116, 122-23 (2d Cir. 2001), overruled on other grounds, Porter v. Nussle, 534 U.S. 516 (2002)); Rodriguez v. Rosner, No. 12-CV-958, 2012 WL 7160117, *8 (N.D.N.Y. Dec. 5, 2012). “[A] post-exhaustion amendment of the complaint cannot cure an exhaustion defect existing at the time the action was commenced.” Guillory v. Haywood, No. 9:13-CV-1564, 2015 WL 268933, *11 (N.D.N.Y. Jan. 21, 2015) (citing Neal, 267 F.3d at 122) (other citation omitted). *5 When the Second Circuit decided Giano, it also decided four other related cases, further clarifying the law in the Second Circuit regarding the PLRA's exhaustion requirement, and carved out particular instances in which the requirement could be waived or excused. See Hemphill, 380 F.3d at 686; Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004); Ortiz v. McBride, 380 F. 3d 649 (2d Cir. 2004). Based on these cases, the Second Circuit developed a “three part inquiry” to determine whether an inmate has fulfilled the PLRA exhaustion requirement: (1) whether the administrative remedies were available to the inmate; (2) whether the defendants' own actions inhibited exhaustion, estopping them from raising the defense of exhaustion; (3) whether “special circumstances” justify the inmate's failure to comply with the exhaustion requirement. See Brownell v. Krom, 446 F.3d 305, 311-12 (2d Cir. 2006) (citing Hemphill, 380 F.3d at 686). Although the Second Circuit has “questioned,” without deciding, whether Hemphill remains good law after Woodford, it has applied the three-part inquiry to recent cases. See, e.g., Heyliger v. Gebler, 624 Fed. Appx. 780, 782-83 (2d Cir. 2015); Davis v. State of New York, 311 Fed. Appx. 397, 399 (2d Cir. 2009); Snyder v. Whittier, 428 Fed. Appx. 89, 91 (2d Cir. 2011). In their answer to the amended complaint, Defendants properly asserted the affirmative defense that Plaintiff failed to exhaust his administrative remedies prior to bringing this federal civil rights action. See Dkt. No. 171 at 4. Plaintiff's argument that Defendants waived their right to assert an exhaustion defense by not raising it in their pre-answer motion to dismiss is without merit. See Dkt. No. 242-1 at 12; Villante v. VanDyke, 93 Fed. Appx. 307, 309 (2d Cir. 2004) (explaining that “[f]ederal Rule of Civil Procedure 8(c) requires only that an affirmative defense be included in a responsive pleading, such as an answer, not that it be the subject of a pretrial motion” and finding that the defendants, “having raised the exhaustion defense in their answer, did not waive the defense by failing to include it in their first motion for summary judgment”); see also Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir. 2001) (permitting a defendant to amend its answer to state an exhaustion defense). As Magistrate Judge Baxter correctly found, Defendants did not waive the exhaustion defense by not asserting it in their initial motion to dismiss. See Dkt. Nos. 104, 171. Defendants have submitted an affidavit from Michael Cunningham, the supervisor of the Inmate Grievance Program (“IGP”) at Shawangunk listing all of the grievances filed by Plaintiff between February 2011 (the date of Plaintiff's transfer to Shawangunk) and July 2012. See Dkt. No. 236-3 at 2. Additionally, Defendants submitted a certified copy of a CORC report showing Plaintiff's appeals to CORC of grievances filed between 2011 and 2015. 3 See Dkt. No. 236-8 at 3-5. This data indicates that Plaintiff filed five grievances at Shawangunk before he filed his initial complaint on January 17, 2012, and that although he fully exhausted two of those claims, they were not exhausted until February and March of 2011, after Plaintiff filed his initial complaint. See Dkt. No. 236-10 at 21. In his response in opposition to Defendants' motion for summary judgment, Plaintiff claims, in conclusory terms, that he submitted many more grievances than Defendants acknowledged in their motion, which the IGRC refused to file, and that he filed additional appeals to CORC, which CORC refused to accept. See Dkt. No. 242-1 at 2-3. Plaintiff's amended complaint, although often vague and confusing, Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 290 of 300
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 appears to allege that he “circulated” or filed “complaints” or grievances on the following dates: March 9, 22, 25, and 30. See Dkt. No. 27 at 11-12. Plaintiff attached a letter to his amended complaint sent by DOCCS Deputy Commissioner LeClaire dated April 26, 2011, in response to a complaint from Plaintiff, which reminds Plaintiff that “[a]llegations of misconduct by facility staff should be directed to facility officials through the established grievance mechanism or by writing to the Superintendent.” See Dkt. No. 27 at 63. Thus, it appears as though Plaintiff may be referring to informal complaints that he failed to properly direct to the established grievance mechanism. *6 Plaintiff has submitted a copy of one formal grievance, dated March 9, 2011, that does not appear to be reflected on Defendants' spreadsheet. In the amended complaint, however, Plaintiff merely alleges that he “circulated” this grievance to “the above named defendants,” so it is unclear whether he properly submitted this grievance to IGRC. See Dkt. No. 27 at 11, 63; Dkt. No. 236 at 21; Dkt. No. 243-4 at 31. Further, Plaintiff has not submitted any documentation to suggest that he appealed a denial of the March 9, 2011 grievance. See Dkt. No. 27 at 11. Finally, whether Plaintiff properly submitted the March 9, 2011, grievance is unimportant as the substance of that grievance was covered, in much greater detail, in Plaintiff's March 10, 2011 grievance, which was properly submitted to IGRC and appealed. See Dkt. No. 236 at 21. As Magistrate Judge Baxter correctly found, Plaintiff's vague and conclusory allegations that he filed other grievances that were not accepted by the IGRC at Shawangunk do not, in light of the documentation that Defendants have provided about Plaintiff's grievance history, create a factual dispute material to the issue of whether Plaintiff exhausted his administrative remedies before he filed his initial complaint. See Jeffreys v. City of new York, 426 F.3d 549, 554 (2d Cir. 2005) (explaining that where a plaintiff, in response to a motion for summary judgment, provides only their “own testimony, much of which is contradictory and incomplete, it will be impossible for a district court to determine whether the jury could reasonably find for the plaintiff, and thus whether there are any genuine issues of material fact, without making some assessment of the plaintiff's account”) (quotation and internal citation omitted); Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983) (“mere conclusory allegations or denials are insufficient to withstand a motion for summary judgment once the moving party has set forth a documentary case”) (citations omitted). Similarly, as Magistrate Judge Baxter correctly found, Plaintiff's claim that CORC sometimes refused to accept his appeals does not create a material issue of fact with respect to the exhaustion issue. Plaintiff has submitted two letters, received by him from CORC, dated July 20, 2011, 4 and June 12, 2012, returning papers to him and advising Plaintiff that appeals of grievances must be submitted through the IGRC at his facility, and not sent directly to CORC for review. See Dkt. No. 4-2 at 8-9; Dkt. No. 27 at 70. Only the July 20, 2011 letter is relevant to the exhaustion issue in this case because it pre-dates the filing of Plaintiff's initial complaint, whereas the June 12, 2012, letter was sent and received after the commencement of this action. See Dkt. No. 4-2 at 9. It is clear that the July 20, 2011 letter refers to Grievance No. 26770-11, which Plaintiff did ultimately appeal to exhaustion. See Dkt. No. 236-10 at 21. While CORC's return of Plaintiff's initial inquiry relating to Grievance No. 26770-11 may have delayed CORC's decision, it was Plaintiff's own mistake that would have caused that delay and would not estop Defendants from using the affirmative defense of exhaustion, nor is it a “special circumstance” under the Hemphill factors. Plaintiff's primary argument as to why his failure to exhaust administrative remedies before filing this action should be excused, is that CORC far exceeded the time limits set by DOCCS regulations in denying his final appeal of Grievance No. 26770-11. See Dkt. No. 242-1 at 4-8. However, it is well-established law in the Second Circuit that a plaintiff must wait for a final decision from CORC before filing an action, even if CORC's decision is untimely under DOCCS internal rules and regulations. See Casey, 2015 WL 8008728, at *6 (“CORC's failure to act within the time frame set out in the regulations does not constitute a special circumstance justifying the failure to exhaust”) (collecting cases); Guillory, 2015 WL 268933, at *12 (“although regulations require CORC to respond within thirty days, its failure to do so is not a ‘special circumstance’ which might defeat an exhaustion defense” (citation omitted)). The numerous grievances pursued by Plaintiff in 2011 and 2012, as well as the two appealed grievance decisions, clearly indicate that Plaintiff had access to, and took advantage of, the grievance process and was thus not inhibited from fully utilizing the grievance process. See Dkt. No. 236-10 at 21. Therefore, Plaintiff has failed to establish a material issue of fact with respect to the availability of the administrative grievance remedies that might justify Plaintiff's failure to exhaust the administrative grievance process before filing this action. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 291 of 300
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 *7 As Magistrate Judge Baxter correctly found, Plaintiff's retaliation, equal protection, and Eighth Amendment medical claims must be dismissed without prejudice for failure to exhaust the administrative grievance process prior to filing this action. While requiring Plaintiff to initiate a new lawsuit now that at least two of his claims have been fully exhausted may seem judicially inefficient, if the resulting decision is favorable to the plaintiff “the federal court will have wasted its resources adjudicating claims that could have been resolved within the prison grievance system at the outset.” Neal, 267 F.3d at 123. Moreover, “allowing prisoner suits to proceed, so long as the inmate eventually fulfills the exhaustion requirement, undermines Congress' directive to pursue administrative remedies prior to filing a complaint in federal court.” Id. C. Due process claims Defendant's have not argued that Plaintiff failed to fully appeal the disciplinary hearings challenged in the Amended Complaint. See Dkt. Nos. 27, 236. Accordingly, as Magistrate Judge Baxter correctly found, the due process claims cannot be dismissed based on failure to exhaust, and must be addressed on the merits. See Dkt. No. 249. The Fourteenth Amendment to the Constitution provides that “[n]o State shall ... deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. AMEND. XIV, § 1. “Although prison inmates necessarily have their liberty severely curtailed while incarcerated, they are nevertheless entitled to certain procedural protections when disciplinary actions subject them to further liberty deprivations such as loss of good-time credit or special confinement that imposes an atypical hardship.” Sira v. Morton, 380 F.3d 57, 69 (2d Cir. 2004) (citations omitted). These procedural protections include advance written notice of the charges, a fair and impartial hearing officer, a hearing that affords the inmate the opportunity to call witnesses and present documentary evidence, and a written statement of the evidence upon which the hearing officer relied in making his determination. Id. (citing Wolff v. McDonnell, 418 U.S. 539, 556 (1974)) (other citation omitted). Additionally, the hearing officer's findings must be supported by “some” “reliable evidence.” Id. (citing Superintendent v. Hill, 472 U.S. 445, 455 (1985)) (other citation omitted). To successfully state a claim under section 1983 for denial of due process, a plaintiff must establish both the existence of a protected liberty or property interest, and that he or she was deprived of that interest without being afforded sufficient process. See Shakur v. Selsky, 391 F.3d 106, 118 (2d Cir. 2004) (citing Kentucky Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989)); Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001). “Prison discipline implicates a liberty interest when it ‘imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.’ ” Ortiz, 380 F.3d at 654 (quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). In Sandin, the Supreme Court held that although states may create liberty interests protected by due process, “these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, ... nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S. 483-84 (internal citations omitted). The Second Circuit has refused to set a bright line rule on when confinement becomes atypical. “In order to determine whether a liberty interest has been affected, district courts are required to examine the circumstances of a confinement ... and to identify with specificity the facts upon which [their] conclusions [are] based.” Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir. 1998) (citations omitted). While under certain circumstances confinement of less than 101 days could be shown to meet the atypicality standard under Sandin, the Second Circuit generally takes the position that confinement in a Special Housing Unit (“SHU”), without unusual conditions, for a period of up to 101 days will not constitute an atypical hardship, while confinement for a period of more than 305 days has been held to be atypical even if under “normal conditions.” Ortiz, 380 F.3d at 654; see Colon v. Howard, 215 F.3d 227, 231, 232 n.5 (2d Cir. 2000). The “atypicality” inquiry under Sandin is normally a question of law. Colon, 215 F.3d at 230-31; Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999). *8 “Overlapping disciplinary penalties may, under some circumstances, have to be aggregated for purposes of determining whether a liberty interest was violated.” Reynoso v. Selsky, 292 Fed. Appx. 120, 122 (2d Cir. 2008) (citation omitted). “Generally, it appears from Second Circuit decisions that separate SHU sentences constitute a ‘sustained’ period of confinement [that may be aggregated] when (1) they are contiguous and (2) they either (a) were imposed by the same disciplinary hearing officer or (b) were based on the same administrative rationale and are executed under the same conditions.” Taylor v. Artus, No. 9:05-CV-271, 2007 Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 292 of 300
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 WL 4555932, *8 (N.D.N.Y. Dec. 19, 2007) (collecting cases) (emphasis in original). Although all relevant disciplinary proceedings involved Tier II hearings, for which the maximum possible confinement was 30 days of segregated housing or keeplock and would not, therefore, trigger due process protection individually, it is appropriate to aggregate two discrete periods in 2011 for due process analysis purposes. During these two discrete periods, Plaintiff served consecutive terms of confinement exceeding 30 days, and all of Plaintiff's disciplinary hearings at Shawangunk were conducted by the same individual, Defendant Gardner. 5 See Dkt. No. 236-10 at 17 (citing N.Y. Comp. Codes R. & Regs. Tit. 7 § 253.7(a)(1)(iii)). 6 When aggregated, these two distinct periods constitute a 59 day consecutive period of keeplock served between March 14 and May 11, 2011, and a 64 day consecutive period of keeplock served between October 14 and December 16, 2011. See Dkt. No. 236-9 at 7-8. However, as Magistrate Judge Baxter correctly found, Plaintiff's liberty interests were not implicated by the disciplinary proceedings challenged in the amended complain, even after aggregating the two consecutive periods of keeplock, given the absence of any allegations from Plaintiff about unusually harsh conditions of his keeplock. Plaintiff's inmate history does not list two misbehavior reports filed by Defendant Budziszewski, which Defendants included with their motion. See Dkt. No. 236-6 at 69, 82-84. Plaintiff contends in his amended complaint that there were additional misbehavior reports filed against him in 2011 which are not reflected on the disciplinary history submitted by Defendants. See Dkt. No. 27 at 11, 24, 34-35, 48. Plaintiff, however, does not provide any specific allegations to suggest that he served punishment on disciplinary charges brought against him prior to the filing of his amended complaint on June 26, 2012 beyond that reflected in his disciplinary history or in the other disciplinary records submitted by Defendants. Plaintiff has not submitted any evidence establishing, or even made any allegations, that the conditions he experienced while serving keeplock sentences at Shawangunk were more harsh than typical keeplock conditions. Therefore, as Magistrate Judge Baxter correctly found, none of the periods of keeplock confinement he served would implicate a liberty interest warranting due process protection. See, e.g., Holland v. Goord, No. 05-CV-6295, 2006 WL 1983382, *7 (W.D.N.Y. July 13, 2006) (finding 77 days in keeplock during which the plaintiff was deprived of TV, phone, packages, and commissary, and was unable to attend Muslim services and classes, did not constitute a liberty interest); Pilgrim v. Bruce, No. 9:05-CV-198, 2008 WL 2003792, *15 (N.D.N.Y. May 7, 2008) (finding that a plaintiff's conclusory allegations, which notably failed to include claims that he was denied food, clothing, bedding, heat, running water, toiletries, or medicine during his 60 days in keeplock, fail to establish that he was subject to more severe conditions than in normal restrictive confinement); Holmes v. Grant, No. 03-CIV-3426, 2005 WL 2839123, *5 (S.D.N.Y. Oct. 25, 2005) (finding that sixty days in the SHU at Shawangunk is “insufficient to constitute a deprivation of a liberty interest”). *9 Based on the foregoing, the Court grants Defendants' motion for summary judgment as to Plaintiff's due process claims. II. CONCLUSION After carefully considering Magistrate Judge Baxter's Report- Recommendation, the parties' submissions and the applicable law, and for the reasons stated herein, the Court hereby ORDERS that Magistrate Judge Baxter's March 22, 2016 Report-Recommendation is ADOPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Defendants' summary judgment motion is GRANTED in full; and the Court further ORDERS that Plaintiff's retaliation, equal protection, and Eighth Amendment medical indifference claims are DISMISSED without prejudice; and the Court further ORDERS that Plaintiff's procedural due process claims are DISMISSED with prejudice; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. IT IS SO ORDERED. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 293 of 300
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 All Citations Not Reported in Fed. Supp., 2016 WL 3349316 Footnotes 1 C.O. North, who, by then, was no longer an active DOCCS employee, had not been served with the amended complaint and was not then represented in this action. See Dkt. No. 91. C.O. North has since accepted service, and is currently represented by the Attorney General's Office, as are the other remaining thirteen Defendants. 2 Although Magistrate Judge Baxter's March 22, 2016, Report-Recommendation indicates that the Defendants' summary judgment motion should be granted in part, it is clear upon review that all remaining claims in Plaintiff's amended complaint must be dismissed on the grounds stated. Magistrate Judge Baxter found it unnecessary, as does this Court, to address multiple grounds on which to dismiss the same claims. Therefore, the Report-Recommendation actually recommends granting Defendants' summary judgment motion in full, terminating the instant action in its entirety. 3 The information from these two sources was collated in a spreadsheet summarizing Plaintiff's grievance filings and appeals, attached as Appendix A to Defendants' Memorandum of Law. See Dkt. No. 236-10 at 20-21. 4 Magistrate Judge Baxter's March 22, 2016, Report-Recommendation refers to this as the July 11, 2011 letter, which was the date on which Plaintiff received an adverse decision to his SHG-26770-11 Grievance; however, the actual letter from Karen Bellamy, Director of IGP, is dated July 20, 2011. 5 Plaintiff began serving more severe disciplinary sentences following disciplinary proceedings in July 2012, but that, and subsequent disciplinary hearings occurred after Plaintiff filed his amended complaint, and are not part of this action. See Dkt. No. 236-9 at 6-7. 6 The federal district courts in New York, applying Sandin, have consistently held that terms of special housing or “keeplock” of approximately 30 days, and the related loss of privileges, do not implicate a liberty interest protected by the due process clause, even in the absence of detailed factual development regarding the conditions of confinement. See, e.g., Brown v. Secore, No. 9:08-CV-085, 2010 WL 980233, *5 (N.D.N.Y. Mar. 15, 2010) (collecting cases). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 294 of 300
Velasco v. Williams, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 2025 WL 3470472 Only the Westlaw citation is currently available. United States District Court, D. Connecticut. Victor VELASCO, Plaintiff, v. Risheba Vaughan WILLIAMS; Terrence Palmer; and Luis Aponte, Defendants. Civil No. 3:23-cv-419 (AWT) | Signed December 3, 2025 Attorneys and Law Firms Victor Velasco, Suffield, CT, Pro Se. Frank Joseph Garofalo, III, Office of the Attorney General, Hartford, CT, for Defendants. RULING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Alvin W. Thompson, United States District Judge *1 Defendants Risheba Vaughan Williams, Terrence Palmer, and Luis Aponte have moved for summary judgment on the remaining claims in plaintiff Victor Velasco's Complaint (ECF No. 1) (the “Complaint”). See Initial Review Order (ECF No. 15). Defendant Vaughan Williams has moved for summary judgment on the plaintiff's Eighth Amendment excessive force claim and the plaintiff's Eighth Amendment deliberate indifference claim. Defendants Palmer and Aponte have moved for summary judgment on the plaintiff's First Amendment retaliation claims against each of them. For the reasons set forth below, the defendants’ motion for summary judgment is being granted. I. FACTUAL BACKGROUND “At all relevant times, Plaintiff, Victor Velasco was a sentenced inmate in the custody of the Connecticut Department of Correction (‘DOC’).” Defs.’ L.R. 56(a)(1) Statement of Undisputed Material Facts (“DSF”) (ECF No. 67-19) ¶ 1. “In April 2020, and up to October 26, 2021, Plaintiff was housed at the Corrigan-Radgowski Correctional Center (‘Corrigan’).” Id. ¶ 2. “At all relevant times, Defendant, Risheba Vaughan Williams, was a DOC correction officer working at Corrigan.” Id. ¶ 3. “At all relevant times, Defendant, Luis Aponte, was a DOC correction officer working at Corrigan.” Id. ¶ 4. “At all relevant times, Defendant, Terrence Palmer, was a DOC lieutenant working at Corrigan.” Id. ¶ 5. “As of April 7, 2020, Corrigan had enacted a COVID-19 Operational Response Plan, during which the inmate's out- of-cell time was limited to thirty (30) minute increments for inmates to use the shower and make a phone call.” Id. ¶ 8. “Plaintiff was housed in the ‘SRG-PC’ Unit on April 7, 2020.” Id. ¶ 9. “At all relevant times, the ‘SRG-PC’ Unit conducted recreation by only allowing the occupants of one (1) cell out at a time.” Id. ¶ 10. “On the evening of April 7, 2020, Officer Vaughan Williams, along with Officer Stephen Losty, were officers assigned to the SRG-PC Unit.” Id. ¶ 11. “On the evening of April 7, 2020, Plaintiff's cell door was opened at 8:45 pm to allow him and his cellmate out of their cell to use the phone and take a shower.” Id. ¶ 12 (footnote omitted). “At all times, inmates, including Plaintiff, were required to follow the directions given to them by staff regarding the time allotted to them for their out-of-cell recreation.” Id. ¶ 13. “At all times, if an inmate was ordered to return to his cell without obtaining hot water because he had exceeded his allotted out-of-cell time, then the inmate was required to comply with that order.” Id. ¶ 14. “From 8:47 pm through 9:03 pm, Mr. Velasco used the telephone.” Id. ¶ 15. “At 9:03 pm, Mr. Velasco entered the shower.” Id. ¶ 16. “As of 9:15 pm, Mr. Velasco was still using the shower.” Id. ¶ 17. “Mr. Velasco overheard Officer Losty announce that his time to use the shower was over.” Id. ¶ 18. “Mr. Velasco did not exit the shower until 9:21 pm.” Id. ¶ 19. “Upon exiting the shower at 9:21 pm, Mr. Velasco did not return to his cell.” Id. ¶ 20. “From 9:21 pm to 9:22 pm, Mr. Velasco proceeded to dump the contents of his cup in the shower, and then proceeded over to the unit's hot water ... pot.” Id. ¶ 21. *2 “At 9:22 pm, for about 35 seconds, Officer Vaughan Williams and Mr. Velasco engaged in a verbal back-and-forth by the hot water pot.” Id. ¶ 22. “After their back-and-forth, Officer Vaughan Williams grabbed for Mr. Velasco's left wrist and arm, then pushed him away from the hot water pot and up towards a wall.” Id. ¶ 23. “At 9:23, a code was called by Officer Losty at the direction of Officer Vaughan Williams to request assistance in the unit from other staff.” Id. ¶ 24. “While the code was being called, Officer Vaughan Williams used her weight to keep Mr. Velasco up against the wall while Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 295 of 300
Velasco v. Williams, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 she also tried to secure his hands behind his back.” Id. ¶ 25. “Officer Vaughan Williams did not punch, kick or deliver any strikes to Mr. Velasco.” Id. ¶ 26. “Officer Vaughan Williams did not deploy chemical agent on Mr. Velasco.” Id. ¶ 27. “Once the code was called, staff arrived in approximately fifteen seconds to aid Officer Vaughan Williams in stabilizing Mr. Velasco and securing him for transfer to the restricted housing unit (‘RHU’).” Id. ¶ 29. “At all relevant times, DOC Administrative Directive No. 9.6 provided DOC inmates, including Mr. Velasco, an administrative remedy process to report any concerns with the conditions of their confinement.” Id. ¶ 49. The administrative remedies for the DOC are set forth in Administrative Directive 9.6 (“A.D. 9.6”). The defendants submitted the version of A.D. 9.6 that was in effect at the times relevant to the Amended Complaint. See DSF Ex. Q (ECF No. 67-18) (Jacaruso Decl.), Attachment 1. Under this version of A.D. 9.6, prior to filing a grievance, an aggrieved inmate is required to first seek informal resolution of his issues, initially verbally, and then if unsuccessful, in writing, using a CN 9601 Inmate Request Form. See id. at 9, 1 9.6(6)(A). Correctional staff are required to respond to an Inmate Request Form within fifteen business days of receipt. See id. If an inmate does not receive a response to the written request within fifteen business days or if the inmate is not satisfied with the response to his request, the inmate can file a Level 1 Grievance using a CN 9602, Inmate Administrative Remedy Form. See id. at 10, 9.6(6)(C). The Level 1 Grievance must be filed within thirty calendar days from the date of the occurrence or discovery of the cause of the grievance, and the inmate must attach his CN 9601 Inmate Request Form containing the appropriate staff member's response or explain why the form is not attached. See id. The Unit Administrator must respond in writing to the Level 1 Grievance within thirty business days of his or her receipt of the grievance. See id. at 11, 9.6(6)(I). The grievance can be returned without disposition, rejected, denied, compromised, upheld, or withdrawn. See id. at 10, 9.6(6)(D). After that, an inmate can appeal the decision on the Level 1 Grievance by filing a Level 2 Appeal within either five calendar days of the receipt of the decision with respect to the Level 1 Grievance, or within sixty-five days of the date of the filing of the Level 1 Grievance if the inmate does not receive a timely response to the Level 1 Grievance. See id., 9.6(6) (K), (M). A Level 2 Grievance filed by an inmate confined in a Connecticut correctional facility is reviewed by the appropriate District Administrator, and a Level 2 Grievance filed by an inmate housed out-of-state is reviewed by the Director of Sentence Calculation and Interstate Management. See id., 9.6(6)(K)(1)-(2). A Level 2 Grievance reviewer must respond in writing within thirty days of receiving the Level 2 Grievance. See id., 9.6(6)(K). The response must include a statement of the remedy for a grievance, if upheld or compromised, or a statement of the reason a grievance is denied or rejected. See id. In certain circumstances, an inmate may also appeal the District Administrator's disposition of his Level 2 Grievance by way of a Level 3 Grievance, which is reviewed by the Commissioner of the DOC or his designee. See id., 9.6(6)(L). *3 “At all relevant times, a log of all administrative remedies filed at Corrigan was maintained.” DSF ¶ 50. “Counselor Nicholas Jacaruso, the Administrative Remedies Coordinator (‘ARC’) at Corrigan, is the keeper of records of inmate administrative remedies, including grievances, and grievance appeals filed by inmates at Corrigan, pursuant to A.D. 9.6.” Id. ¶ 51. “Counselor Jacaruso has inspected the grievance logs and administrative remedies on file at Corrigan for Mr. Velasco from April 1, 2020 through October 1, 2020.” Id. ¶ 52. “Over that time, Mr. Velasco only filed two (2) separate administrative remedies, which were assigned grievance numbers (‘IGP numbers’) 140-20-140 and 140-20-145, respectively.” Id. ¶ 53. The former grievance concerned a dietary restriction that is unrelated to the claims in this case; the latter grievance concerned only the plaintiff's excessive force claim against defendant Vaughan Williams. See DSF Ex. Q (ECF No. 67-18) (Jacaruso Decl.), Attachment 2. II. LEGAL STANDARD A motion for summary judgment may not be granted unless the court determines that there is no genuine issue of material fact to be tried and that the facts as to which there is no such issue warrant judgment for the moving party as a matter of law. Fed. R. Civ. P. 56(a). See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223 (2d Cir. 1994). Rule 56(c) “mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 296 of 300
Velasco v. Williams, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 When ruling on a motion for summary judgment, the court must respect the province of the jury. The court, therefore, may not try issues of fact. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Heyman v. Commerce of Indus. Ins. Co., 524 F.2d 1317, 1319-20 (2d Cir. 1975). It is well-established that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge ....” Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Thus, the trial court's task is “carefully limited to discerning whether there are any genuine issues of material fact to be tried, not deciding them. Its duty, in short, is confined ... to issue-finding; it does not extend to issue-resolution.” Gallo, 22 F.3d at 1224. Summary judgment is inappropriate only if the issue to be resolved is both genuine and related to a material fact. Therefore, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. An issue is “genuine ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (internal quotation marks omitted). A material fact is one that would “affect the outcome of the suit under the governing law.” Id. As the Court observed in Anderson: “[T]he materiality determination rests on the substantive law, [and] it is the substantive law's identification of which facts are critical and which facts are irrelevant that governs.” Id. When reviewing the evidence on a motion for summary judgment, the court must “assess the record in the light most favorable to the non-movant ... and draw all reasonable inferences in [the non-movant's] favor.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990) (alteration in original)). Nonetheless, the inferences drawn in favor of the nonmovant must be supported by the evidence. “[M]ere speculation and conjecture is insufficient to defeat a motion for summary judgment.” Stern v. Trustees of Columbia Univ., 131 F.3d 305, 315 (2d Cir. 1997) (Calabresi, J., dissenting) (internal quotation marks omitted) (quoting W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990)). *4 Also, the nonmoving party cannot simply rest on the allegations in its pleadings since the essence of summary judgment is to go beyond the pleadings to determine if a genuine issue of material fact exists. See Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). “Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact,” id., if the movant demonstrates an absence of such issues, a limited burden of production shifts to the nonmovant, who must “demonstrate more than some metaphysical doubt as to the material facts, ... [and] must come forward with specific facts showing that there is a genuine issue for trial,” Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (emphasis, quotation marks and citations omitted). “Accordingly, unsupported allegations do not create a material issue of fact.” Weinstock, 224 F.3d at 41. Because the plaintiff is proceeding pro se, the court must read the plaintiff's pleadings and other documents liberally and construe them in a manner most favorable to the plaintiff. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Moreover, because the process of summary judgment is “not obvious to a layman,” Vital v. Interfaith Medical Ctr., 168 F.3d 615, 620 (2d Cir. 1999) (internal quotation marks and citations omitted), the district court must ensure that a pro se plaintiff understands the nature, consequences, and obligations of summary judgment. See id. at 620-21. Thus, the district court may itself notify the pro se plaintiff as to the nature of summary judgment; the court may find that the opposing party's memoranda in support of summary judgment provide adequate notice; or the court may determine, based on thorough review of the record, that the pro se plaintiff understands the nature, consequences, and obligations of summary judgment. See id. The court concludes that here the plaintiff understands the nature, consequences and obligations of summary judgement. First, the defendant served the plaintiff with the notice to pro se litigants required by Local Rule 56(b). Second, the defendant's memorandum states the nature and consequences of summary judgment. Third, although the plaintiff did not file an opposition to the defendants’ motion for summary judgment, the plaintiff has filed an opposition to a motion for summary judgment in a separate action, demonstrating that he understands the nature, consequences and obligations of summary judgment. See Objection to Defendant's Motion for Summary Judgment, Velasco v. Phillips, 3:23-cv-591 (AWT) (Jan. 30, 2025) (ECF No. 59). III. DISCUSSION Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 297 of 300
Velasco v. Williams, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 There is no genuine issue of material fact with respect to any of the plaintiff's four claims. The plaintiff has failed to exhaust administrative remedies for three of his claims: a claim for deliberate indifference to his health and safety against defendant Vaughan Williams arising out of alleged damage to the plaintiff's walker during the altercation at issue, and two claims for First Amendment retaliation against defendants Palmer and Aponte. Although the plaintiff has exhausted administrative remedies for his excessive force claim against defendant Vaughan Williams, there is no genuine issue of material fact with respect to the objective element of that Eighth Amendment claim, and defendant Vaughan Williams is entitled to summary judgment. Therefore, the court does not address the subjective element of the plaintiff's Eighth Amendment excessive force claim. A. Failure to Exhaust The plaintiff has failed to administratively exhaust any of his claims other than his excessive force claim against defendant Vaughan Williams. 1. PLRA Exhaustion Through A.D. 9.6 The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust all administrative remedies prior to filing a federal lawsuit with respect to prison conditions. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 ... 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”). The exhaustion requirement of Section 1997e(a) “applies to all inmate suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), “even where the relief sought ... cannot be granted by the administrative process.” Woodford v. Ngo, 548 U.S. 81, 85, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (citing Booth v. Churner, 532 U.S. 731, 734, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). *5 “[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Thus, to satisfy the exhaustion requirement, an inmate must avail themselves of “all steps that the [prison-grievance system] holds out, and do[ ] so properly.” Woodford, 548 U.S. at 90, 126 S.Ct. 2378 (internal quotation marks and citation omitted). An inmate's failure to exhaust administrative remedies is only excusable if the administrative remedies were not truly “available,” i.e., the administrative remedy is “officially on the books” but not truly available in practice. Ross v. Blake, 578 U.S. 632, 643, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016). There are three circumstances in which an administrative remedy is considered to be unavailable: [1.] 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[;] ... [2. when a procedure is] so opaque that it becomes, practically speaking, incapable of use[;] ... [or] [3.] when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation. 2 Id. at 643-44. Because “failure to exhaust is an affirmative defense,” Johnson v. Rowley, 569 F.3d 40, 45 (2d Cir. 2009), it is the defendants’ burden to prove that an inmate did not exhaust his claim prior to filing the action in court, see, e.g., Williams v. Priatno, 829 F.3d 118, 126 n.6 (2d Cir. 2016); Mago v. Finnucan, 2023 WL 4850673, at *2 (D. Conn. July 28, 2023). “Once this burden is met, the plaintiff must show that he did exhaust his administrative remedies or that the administrative remedy is not available in practice.” Wright v. Snyder, 2023 WL 6379451, at *4 (D. Conn. September 30, 2023). See also Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y. 2013) (“[O]nce a defendant has adduced reliable evidence that administrative remedies were available to the plaintiff and that the plaintiff nevertheless failed to exhaust those administrative remedies, the plaintiff must then ‘counter’ the defendant's assertion by showing exhaustion [or] unavailability ....”). 2. The Plaintiff Failed to Exhaust Available Administrative Remedies Under A.D. 9.6 for Three Claims The defendants have produced evidence establishing that the plaintiff failed to exhaust his administrative remedies. The declaration from Correctional Counselor Jacaruso, the administrative remedies coordinator at Corrigan, shows the Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 298 of 300
Velasco v. Williams, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 plaintiff did not file any grievances with respect to his claims other than his excessive force claim. As a part of his duties, Jacaruso has access to, and is responsible for keeping, records of all inmate grievances and grievance appeals at their respective facilities. Jacaruso avers he conducted a review of Velasco's grievance records for any administrative remedies filed by the plaintiff between April 1, 2020 and October 1, 2020 and that review showed that Velasco filed two grievances. *6 One of these grievances related to the plaintiff's dietary restrictions, which are not at issue in this case. The other grievance properly exhausted the plaintiff's excessive force claim against defendant Vaughan Williams. Neither grievance concerned the plaintiff's claim for deliberate indifference to his health and safety against defendant Vaughan Williams, which alleges damage to the plaintiff's walker during the altercation at issue here. Nor did either grievance concern the plaintiff's First Amendment retaliation claims against defendants Palmer and Aponte. Therefore, the defendants have met their initial burden of establishing that the plaintiff did not exhaust his administrative remedies with respect to any of these three claims. Thus, the plaintiff must show that a genuine issue exists as to whether he exhausted, or was excused from exhausting, his administrative remedies. The plaintiff has not done so. As there is no genuine issue with respect to the fact that the plaintiff failed to exhaust his administrative remedies for these three claims, the defendants are entitled to summary judgment on these claims. B. Excessive Force An inmate alleging excessive force in violation of the Eighth Amendment has the burden of establishing “two components—one subjective, focusing on the defendant's motive for his conduct, and the other objective, focusing on the conduct's effect.” Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000). “The Eighth Amendment's prohibition of ‘cruel and unusual’ punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the conscience of mankind.” Wilkins v. Gaddy, 559 U.S. 34, 37-38, 130 S.Ct. 1175, 175 L.Ed.2d 995 (2010) (internal quotation marks omitted) (quoting Hudson v. McMillan, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992)). “Injury and force, however, are only imperfectly correlated, and it is the latter that ultimately counts.” Id. at 38, 130 S.Ct. 1175. In Boddie v. Schnieder, the court held that the plaintiff's “allegations of excessive force--that he was bumped, grabbed, elbowed, and pushed by [the defendants]--do not approach an Eighth Amendment claim.” 105 F.3d 857, 862 (2d Cir. 1997). “Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.” Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)). As the court explained in George v. County of Westchester: Courts in the Second Circuit have found that comparable uses of force--where a corrections officer forcefully shoves or pushes an inmate--are insufficient to satisfy the objective prong of an excessive force claim. See, e.g., Tavares v. City of New York, No. 08-CV-3782, 2011 WL 5877550, at *5–6 (S.D.N.Y. Oct. 17, 2011) (holding that a pat frisk where the plaintiff was “forcefully ‘compressed’ against the wall” was not a violation of the Eighth Amendment and noting that “[c]ourts in this Circuit have routinely found such types of minimal injuries and pain insufficiently serious or harmful to satisfy the objective element of the Eighth Amendment analysis” (citing cases)), report and recommendation adopted, 2011 WL 5877548 (S.D.N.Y. Nov. 23, 2011); James v. Phillips, No. 05-CV-1539, 2008 WL 1700125, at *5 (S.D.N.Y. Apr. 9, 2008) (concluding that a guard's “shov[ing] of an inmate” constituted a de minimis use of force that could not give rise to a viable excessive force claim); Show v. Patterson, 955 F. Supp. 182, 192–93 (S.D.N.Y. 1997) (concluding that the alleged force--“pushing [the plaintiff] against the wall”-- was “de minimis and thus not protected by the Eighth Amendment”); Bryan v. Admin. of F.C.I. Otisville, 897 F. Supp. 134, 137 (S.D.N.Y. 1995) (“The Second Circuit has deemed brief confrontations between prisoners and guards such as the pushing incident alleged here insignificant for Eighth Amendment purposes.”). *7 No. 20-CV-1723 (KMK), 2021 WL 4392485, at *9 (S.D.N.Y. Sept. 24, 2021). Here, in light of the surveillance video, there is no genuine issue as to the fact that Vaughan Williams and Velasco engaged in a verbal back-and-forth by the hot water pot; Vaughan Williams grabbed for Velasco's left wrist and arm, then pushed him away from the hot water pot and up towards a wall; and Vaughan Williams used her weight to keep Velasco up against the wall while she also tried to secure his hands Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 299 of 300
Velasco v. Williams, Slip Copy (2025) © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 behind his back. See DSF, EX. I (ECF No. 67-10), at 5:22:00– 5:24:00. Defendant Vaughan Williams pushed the plaintiff and held him against a wall. This conduct, without more, does not establish the objective prong of an Eighth Amendment excessive force claim. See Tavares v. City of New York, No. 08-CV-3782, 2011 WL 5877550, at *5–6 (S.D.N.Y. Oct. 17, 2011) (holding that a pat frisk where the plaintiff was “forcefully ‘compressed’ against the wall” was not a violation of the Eighth Amendment); Show v. Patterson, 955 F. Supp. 182, 192–93 (S.D.N.Y. 1997) (concluding that the alleged force--“pushing [the plaintiff] against the wall”--was “de minimis and thus not protected by the Eighth Amendment”). The force which defendant Vaughan Williams used against the plaintiff was “not of a sort repugnant to the conscience of mankind.” Wilkins, 559 U.S. at 38, 130 S.Ct. 1175. Therefore, defendant Vaughan Williams is entitled to summary judgment on the plaintiff's excessive force claim. IV. CONCLUSION For the reasons set forth above, the defendants’ Motion for Summary Judgment (ECF No. 67) is hereby GRANTED. The Clerk shall enter judgment in favor of the defendants and close this case. It is so ordered. All Citations Slip Copy, 2025 WL 3470472 Footnotes 1 The page numbers cited to in this ruling for documents that have been electronically filed refer to the page numbers in the header of the documents and not to the page numbers in the original documents, if any. 2 “The three circumstances discussed in Ross do not appear to be exhaustive[.]” Williams v. Priatno, 829 F.3d 118, 123 n.2 (2d Cir. 2016). However, “[i]n considering the issue of availability ... the Court is [still] guided by these illustrations.” Smith v. Perez, 2023 WL 4554946, 6, 2023 U.S. Dist. LEXIS 121258, 17 (D. Conn. Jul. 14, 2023). End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:23-cv-00697-MAD-ML Document 71 Filed 01/06/26 Page 300 of 300
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