Hinds v. Wilcox

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOSHUA HINDS,
Plaintiff,
vs. 	9:24-CV-1210
(MAD/DJS)
C.O. WILCOX,
Defendant.
____________________________________________
APPEARANCES: 	OF COUNSEL:
JOSHUA HINDS
A#202-090-0892
Buffalo Federal Detention Facility
4250 Federal Drive
Batavia, New York 14020
Plaintiff, Pro Se
OFFICE OF THE NEW YORK STATE 	RACHAEL OUIMET, AAG
ATTORNEY GENERAL
The Capitol
Albany, New York 12224
Attorney for Defendant
Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff Joshua Hinds ("Plaintiff"), pro se, was an incarcerated individual in the custody
of the New York State Department of Corrections and Community Supervision ("DOCCS") at all
relevant times. Plaintiff brings an Eighth Amendment claim, pursuant to 42 U.S.C. § 1983,
alleging that a corrections officer ("C.O.") at Clinton Correctional Facility ("Clinton") used
excessive force against him. See Dkt. Nos. 1, 21-1. Specifically, Plaintiff alleges Defendant C.O.
Kevin Wilcox ("Defendant") "used excessive force by assaulting [him] in an unjust an [sic]
Case 9:24-cv-01210-MAD-DJS Document 29 Filed 02/09/26 Page 1 of 6

2
unprovoked attack by choking [him] by the neck, slamming [him] to the ground and repeatedly
striking [him] with his closed fist to [his] head and face." Dkt. No. 1 at 5. Plaintiff does not
allege the year in which this event occurred; however, Defendant surmises that the alleged assault
occurred in 2023, based on the years of Plaintiff's incarceration at Clinton. See Dkt. No. 21-1 at
3. Plaintiff seeks relief in the amount of $250,000. See Dkt. No. 1 at 7.
Presently before the Court is Magistrate Judge Stewart's Report-Recommendation and
Order recommending that Defendant's motion for summary judgment brought pursuant to Rule
56(a) of the Federal Rule of Civil Procedure be granted. See Dkt. Nos. 21, 27. Plaintiff did not
respond to the motion.1 For the reasons that follow, the Report-Recommendation and Order is
adopted in its entirety.
As an initial matter, the Court assumes the parties' familiarity with the relevant factual
background in this matter and adopts the factual recitation contained in Magistrate Judge
Stewart's Report-Recommendation and Order. See Dkt. No. 27. However, the Court includes the
following brief recitation of facts to frame the issues decided herein.
Plaintiff was housed at Clinton from January 20, 2023, to July 6, 2023. See Dkt. No. 21-1
at 4; Dkt. No. 21-6 at ¶ 18. After the alleged assault, Plaintiff was transferred to Upstate
Correctional Facility ("Upstate") and housed in Upstate's Residential Rehabilitation Unit from
July 6, 2023, to September 14, 2023. Dkt. No. 21-1 at 4; Dkt. No. 21-5 at ¶ 16. As per DOCCS'
policy, both Clinton and Upstate had fully functioning and available inmate grievance programs
("IGP") during Plaintiff's time of incarceration. See Dkt. No. 21-5 at ¶ 17; Dkt. No. 21-6 at ¶ 19.
1 Defendant's motion was filed on March 7, 2025. See Dkt. No. 21. According to the Buffalo
Federal Detention Facility, Plaintiff was deported on March 19, 2025. See Dkt. No. 24. The
Court then sua sponte granted Plaintiff a three-month extension to oppose the motion for
summary judgment. See Dkt. No. 25. Plaintiff did not file a response to Defendant's motion or
objections to the Report-Recommendation and Order.
Case 9:24-cv-01210-MAD-DJS Document 29 Filed 02/09/26 Page 2 of 6

3
Magistrate Judge Stewart concluded that because Defendant adduced evidence of Clinton
and Upstate's fully functioning IGPs and Plaintiff offered no evidence suggesting the grievance
process was unavailable to him, the summary judgment motion should be granted based on
Plaintiff's failure to exhaust his administrative remedies pursuant to the Prison Litigation Reform
Act's ("PLRA"). See Dkt. No. 27 at 8. Plaintiff has not objected to this conclusion. Rather, the
Report-Recommendation and Order was returned as undeliverable from the Buffalo Federal
Detention Center on September 9, 2025. See Dkt. No. 28.
When a party declines to file objections to a magistrate judge's report-recommendation,
the district court reviews the report-recommendation for clear error. See Hamilton v. Colvin, 8 F.
Supp. 3d 232, 236 (N.D.N.Y. 2013). 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). "[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 stated that the court is obligated to "make reasonable
allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely "because
of their lack of legal training." Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
Summary judgment may only be granted if the movant shows there is no genuine dispute
as to any material fact and if the movant is entitled to judgment as a matter of law. FED. R. CIV. P.
56(a). In determining whether summary judgment is appropriate, the court "'cannot try issues of
fact; it can only determine whether there are issues to be tried.'" Chambers v. TRM Copy Ctrs.
Corp., 43 F.3d 29, 36-37 (2d Cir. 1994) (quoting Donahue v. Windsor Locks Bd. Of Fire
Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987)). Where a non-movant fails to respond to a motion for
Case 9:24-cv-01210-MAD-DJS Document 29 Filed 02/09/26 Page 3 of 6

4
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 nonmoving party is proceeding pro se." Cusamano
v. Sobek, 604 F. Supp. 2d 416, 426 (N.D.N.Y. 2009) (footnote omitted). Generally, "[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." N.D.N.Y. L. R. 56.1(b) (emphasis omitted);
see also Guishard v. Gregory, No. 9:19-CV-1475, 2022 WL 7287712, *2 (N.D.N.Y. Aug. 11,
2022) (quoting T.Y. v. N.Y.C. Dep't of Educ., 584 F.3d 412, 418 (2d Cir. 2009)); Beers v. GMC,
No. 97-CV-482, 1999 WL 325378, *8-9 (N.D.N.Y. May 17, 1999).
Plaintiff did not respond to Defendant's motion for summary judgment; therefore,
Magistrate Judge Stewart appropriately found no genuine disputes as to any material fact
presented by Defendant. See Dkt. No. 27. More specifically, as explained by Magistrate Judge
Stewart, under the 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 Dkt. No.
27 at 5. The exhaustion requirement "applies to all inmate suits about prison life . . . [including]
excessive force." Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Conklin v. Bowen, No.
9:12-CV-01478, 2014 WL 4063294, *2 (N.D.N.Y. Aug. 14, 2014). While being housed in a
DOCCS facility, Plaintiff was required to go through a three-step administrative review process to
properly exhaust his administrative remedies, as follows: (1) file a grievance with the Inmate
Grievance Resolution Committee ("IGRC"), (2) appeal an adverse decision by the IGRC to the
superintendent of the facility, and (3) appeal an adverse decision by the superintendent to the
Central Office Review Committee ("CORC"). See 7 N.Y.C.R.R. § 701.5; see also Dkt. No. 21-5
at ¶ 5.
Case 9:24-cv-01210-MAD-DJS Document 29 Filed 02/09/26 Page 4 of 6

5
As Magistrate Judge Stewart correctly observed, see Dkt. No. 27 at 7-10, Defendant has
provided evidence from Clinton and Upstate showing that during the applicable time periods, no
grievance was filed by Plaintiff. See Dkt. No. 21-5 at Exh. A; Dkt. No. 21-6 at Exh. A.
Additionally, the uncontradicted record contains no evidence that Plaintiff appealed a grievance
decision to the superintendent or the CORC.
As stated by Magistrate Judge Stewart, once Defendant established that no grievance was
filed, Platiniff bore the burden of establishing that the grievance procedures were unavailable to
him. See Dkt. No. 27 at 8 (citing Martin v. Wyckoff, No. 9:16-CV-00717, 2018 WL 7356771, *5
(N.D.N.Y. Oct. 16, 2018), R. & R. adopted, 2019 WL 689081 (N.D.N.Y. Feb. 19, 2019)).
Because Plaintiff has not presented evidence that the grievance process was unavailable to him,
the Court finds no clear error in Magistrate Judge Stewart's conclusion that summary judgment
based on Plaintiff's failure to exhaust his administrative remedies is warranted. See Booker v.
Iacobucci, No. 9:23-CV-218, 2024 WL 5454791, *3 (N.D.N.Y. Nov. 20, 2024), R. & R. adopted,
2025 WL 582851 (N.D.N.Y. Feb. 24, 2025).
As a final note, the Court would be remiss if it did not mention that granting summary
judgment against a pro se plaintiff for failure to respond to a motion filed two weeks before he
was deported is disconcerting. However, Defendant has presented evidence that Plaintiff never
filed a grievance at either facility in which he was housed, and Plaintiff's complaint contains no
allegations that he made attempts to file a grievance that were frustrated or thwarted. Ultimately,
it is a plaintiff's duty to prosecute his or her case and civil defendants are entitled to timely
adjudication of claims brought against them. See N.D.N.Y. L.R. 10.1(c)(2).
Accordingly, after carefully reviewing the Report-Recommendation and Order, the parties'
submissions, and the applicable law, the Court hereby
Case 9:24-cv-01210-MAD-DJS Document 29 Filed 02/09/26 Page 5 of 6

6
ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No.
27) is ADOPTED in its entirety; and the Court further
ORDERS that Defendant's motion for summary judgment (Dkt. No. 21) is GRANTED;
and the Court further
ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED with prejudice; and the
court further
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules
IT IS SO ORDERED.
Dated: February 9, 2026
Albany, New York
Case 9:24-cv-01210-MAD-DJS Document 29 Filed 02/09/26 Page 6 of 6