Holmes v. Penree et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
JALEN HOLMES,
Plaintiff,
v. 	9:24-cv-01545 (AMN/DJS)
ANDREW ROSS and JOSHUA KNAPP,
Defendants.
______________________________________
APPEARANCES: 	OF COUNSEL:
JALEN HOLMES
22-B-5190
Lakeview Shock Incarceration Correctional Facility
P.O. Box T
Brocton, New York 14716
Plaintiff pro se
HON. LETITIA JAMES 	OLIVIA R. COX, ESQ.
New York State Attorney General 	Assistant Attorney General
The Capitol
Albany, New York 12224
Attorneys for Defendants
Hon. Anne M. Nardacci, United States District Judge:
ORDER
I. 	INTRODUCTION
On December 19, 2024, plaintiff pro se Jalen Holmes (“Plaintiff”), who was incarcerated
in the custody of the New York State Department of Corrections and Community Supervision
(“DOCCS”) at all relevant times, commenced this action pursuant to 42 U.S.C. § 1983 against
Defendants Scott Carpenter, Francis Chandler, Bryant Hilton, Joshua Knapp, Dan Penree, Andrew
Ross, and Justin Walker. 	See Dkt. No. 1. 	Plaintiff sought and was granted leave to proceed in
forma pauperis. Dkt. Nos. 5, 7. On March 3, 2025, the Court, on initial review pursuant to 28
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U.S.C. § 1915, dismissed all but Plaintiff’s Eighth Amendment excessive force claim against
Defendants Ross and Knapp (“Defendants”). Dkt. No. 7 at 25-26. 1 On August 4, 2025, Defendants
filed a motion for summary judgment seeking to dismiss the Complaint for failure to exhaust
administrative remedies. Dkt. No. 25 (“Motion”). The parties have fully briefed the Motion. See
Dkt. Nos. 28-30. Plaintiff also filed a motion to appoint counsel on September 10, 2025. Dkt. No.
31. This matter was referred to United States Magistrate Judge Daniel J. Stewart, who, on January
9, 	2026, 	issued 	a 	Report-Recommendation 	and 	Order 	(“Report-Recommendation”),
recommending that Defendants’ Motion be granted and that Plaintiff’s motion to appoint counsel
be denied. Dkt. No. 32 at 14. Magistrate Judge Stewart advised that under 28 U.S.C. § 636(b)(1),
the parties had fourteen days within which to file written objections and that failure to object to
the Report-Recommendation within fourteen days would preclude appellate review. Id. Plaintiff
filed objections to the Report-Recommendation on February 20, 2026. Dkt. No. 33. 2
For the reasons stated herein, the Court adopts the recommendations in the Report-
Recommendation.
II. 	STANDARD OF REVIEW
This Court reviews de novo those portions of a magistrate judge’s report-recommendation
that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223,
228 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). 	If no specific objections have been filed, this
Court reviews a magistrate judge’s report-recommendation for clear error. 	See Petersen, 2 F.
Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition).
1 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
2 For a recitation of the factual and procedural history of this action, the parties are referred to the
Report-Recommendation. See Dkt. No. 32 at 1-2.
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Similarly, if an objection simply rehashes arguments originally presented to the magistrate judge,
this Court reviews the relevant portions of the report-recommendation for clear error. 	See
Petersen, 2 F. Supp. 3d at 228-29 & n.6 (collecting cases). “When performing such a ‘clear error’
review, ‘the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.’” Dezarea W. v. Comm’r of Soc. Sec., No. 21-cv-1138, 2023
WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm’r of Soc. Sec., No. 17-
cv-0367, 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)).
“[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to ‘formal pleadings drafted by lawyers.’” Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (additional citations
omitted). The Second Circuit has held that courts are obligated to “make reasonable allowances
to protect pro se litigants” from inadvertently forfeiting legal rights merely because they lack a
legal education. Id. (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). That said, “even a
pro se party’s objections to a Report and Recommendation must be specific and clearly aimed at
particular findings in the magistrate’s proposal[.]” Machicote v. Ercole, No. 06-cv-13320, 2011
WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (citation omitted); accord Caldwell v. Petros, No.
22-cv-567, 2022 WL 16918287, at *1 (N.D.N.Y. Nov. 14, 2022). After appropriate review, “the
court may accept, reject or modify, in whole or in part, the findings or recommendations made by
the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
III. 	DISCUSSION
In response to Magistrate Judge Stewart’s Report-Recommendation, Plaintiff submitted a
document docketed as an objection. Dkt. No. 33. However, Plaintiff’s submission is untimely,
restates certain allegations in the Complaint, and does not identify any objection to the analysis in
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the Report-Recommendation. See id. Thus, Plaintiff has failed to adequately object to the Report-
Recommendation. See Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (noting
that a “statement, devoid of any reference to specific findings or recommendations to which [the
plaintiff] objected and why, and unsupported by legal authority, was not sufficient to preserve” a
claim for appellate review). Accordingly, the Court reviews the Report-Recommendation for clear
error.
For the reasons stated below, the Court adopts the Report-Recommendation in its entirety.
A. Defendants’ Motion
Prior to challenging prison conditions in federal court pursuant to 42 U.S.C. § 1983, the
Prison Litigation Reform Act requires an incarcerated individual to first exhaust his available
administrative remedies. 	See Ross v. Blake, 578 U.S. 632, 635 (2016) (citing 42 U.S.C. §
1997e(a)). Magistrate Judge Stewart noted that in New York, administrative remedies consist of
a three-step Incarcerated Grievance Program (“IGP”), which begins with the incarcerated
individual filing a grievance within 21 calendar days of the alleged incident. See Dkt. No. 32 at
5-6 (citing N.Y. Comp. Codes R. & Regs. (“NYCCR”) tit. 7, § 701.5(a)(1)). 	The grievance is
initially reviewed by the inmate grievance resolution committee (“IGRC”); upon appeal of the
IGRC’s decision, it is reviewed by the facility superintendent; and upon appeal of the
superintendent’s decision, it is reviewed by the central office review committee (“CORC”), which
makes the final administrative determination. See id. at 6 (citing NYCCR §§ 701.5(b)-(d)); see
also Williams v. Corr. Officer Priatno, 829 F.3d 118, 119 (2d Cir. 2016). Additionally, Magistrate
Judge Stewart noted that grievances regarding alleged harassment are subject to expedited review,
but the regulations also require that the incarcerated individual receive a response from CORC in
order to exhaust administrative review. See Dkt. No. 32 at 6 (citing NYCCR § 701.8).
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Magistrate Judge Stewart also stated that an incarcerated individual’s failure to exhaust
administrative remedies may be excused if such remedies were unavailable to him. 	Id. at 7-8
(citing Ross, 578 U.S. at 642). Magistrate Judge Stewart explained that administrative remedies
may be unavailable in three potential circumstances: “(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 8 (quoting Ross, 578 U.S. at 643-44).
Here, Magistrate Judge Stewart concluded that Plaintiff did not exhaust his administrative
remedies regarding the December 10, 2024 incident in question because a records search at Mid-
State Correctional Facility indicated that Plaintiff did not file any grievances alleging that
Defendants used excessive force on him on December 10, 2024 and Plaintiff appears to concede
that there is no grievance on file at Mid-State. See id. at 7 (citing Dkt. No. 25-4 at ¶ 17; Dkt. No.
28 at ¶ 7).
Additionally, Magistrate Judge Stewart concluded that none of the exceptions outlined in
Ross are applicable here to excuse Plaintiff’s failure to exhaust administrative remedies. See id.
at 8-9. Regarding the first two exceptions, Magistrate Judge Stewart noted that Plaintiff has filed
numerous grievances at several different correctional facilities and appealed more than a dozen to
CORC. Id. (citing Dkt. No. 25-3). Specifically, Plaintiff filed at least thirteen grievances while at
Mid-State Correctional Facility, and appealed several of those grievances to CORC, which
demonstrates that Plaintiff did not view the filing of grievances as a dead end and that he clearly
understood the inmate grievance process and how to navigate it. Id. (citing Dkt. No. 25-6). Thus,
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Magistrate Judge Stewart concluded that the first two Ross exceptions are inapplicable here. Id.
at 9 (citing Walker v. Ball, No. 16-cv-437, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018),
report and recommendation adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018); Lurch v. Bui,
No. 19-cv-895, 2020 WL 8450543, at *5 (N.D.N.Y. Dec. 8, 2020), report and recommendation
adopted sub nom. Lurch v. Jones, 2021 WL 392486 (N.D.N.Y. Feb. 4, 2021)).
Regarding the third exception, Magistrate Judge Stewart found that the record does not
support Plaintiff’s conclusory allegation that he filed grievances regarding the December 10, 2024
incident but they were not filed or submitted by the IGP. Id. at 9-11. “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.”
Rodriguez v. Cross, No. 15-cv-1079, 2017 WL 2791063, at *7 (N.D.N.Y. May 9, 2017), report
and recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June 27, 2017). Magistrate Judge
Stewart noted that Plaintiff had not provided copies of the grievances he claims to have filed
regarding the December 10, 2024 incident, despite possessing copies of other correspondence he
filed with the IGP regarding the processing of grievances. Dkt. No. 32 at 10 (citing Dkt. No. 29).
Magistrate Judge Stewart also noted that DOCCS records indicate that Plaintiff’s other grievances
which raise serious allegations regarding lack of medical care, retaliation, and Plaintiff’s hand
being slammed, were repeatedly processed at Mid-State Correctional Facility, and Plaintiff offered
no evidence demonstrating that any grievances related to the December 10, 2024 incident would
not have been processed. 	Id. at 10-11 (citing Dkt. No. 25-6). 	Accordingly, Magistrate Judge
Stewart found that Plaintiff’s conclusory statement that he filed grievances, without any
documentary proof, is insufficient to withstand summary judgment. Id. at 10 (collecting cases).
Lastly, Magistrate Judge Stewart concluded that based on the timeline of events, Plaintiff
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could not have fully exhausted his administrative remedies prior to commencing this action. See
id. at 11-12. 	Given that Plaintiff filed his Complaint only nine days after the alleged incident,
Magistrate Judge Stewart found that it was impossible for the entire grievance process to have run
its course under any set of facts, prior to Plaintiff filing this action. Id. (noting that “[a]t the facility
level, the IGP provides for a minimum of 16 days within which to attempt to resolve a grievance”
and then “multiple appeal levels[,] each with designated amounts of time within which the appeals
should be processed”) (citing, inter alia, Dkt. No. 25-4 at ¶¶ 6-7)).
For 	these 	reasons, 	Magistrate 	Judge 	Stewart 	recommended 	that 	the 	Court 	grant
Defendants’ Motion.
B. Plaintiff’s Motion to Appoint Counsel
Magistrate Judge Stewart also recommended that Plaintiff’s motion to appoint counsel be
denied. Dkt. No. 32 at 13. “In deciding whether to appoint counsel . . . , [if] the indigent’s position
seems likely to be of substance . . . the court should then consider the indigent’s ability to
investigate the crucial facts, whether conflicting evidence implicating the need for cross-
examination will be the major proof presented to the fact finder, the indigent’s ability to present
the case, the complexity of the legal issues and any special reason in that case why appointment
of counsel would be more likely to lead to a just determination.” Hodge v. Police Officers, 802
F.2d 58, 61-62 (2d Cir. 1986). Here, Magistrate Judge Stewart found that the issues in this case
are not particularly novel or complex, they involve a single incident with only two defendants and
a legal claim for which the law is fairly well-established, Plaintiff has not shown an inability to
litigate this matter on his own, and further found that Plaintiff’s history of litigating multiple
matters is not an independent basis for appointing counsel. Dkt. No. 32 at 13.
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* 	* 	*
Finding no clear error, the Court adopts Magistrate Judge Stewart’s recommendation to
grant Defendants’ Motion and deny Plaintiff’s motion to appoint counsel.
IV. 	CONCLUSION
Accordingly, the Court hereby
ORDERS that the recommendations in the January 9, 2026 Report-Recommendation, Dkt.
No. 32, are ADOPTED for the reasons stated herein; and the Court further
ORDERS that Defendants’ motion for summary judgment, Dkt. No. 25, is GRANTED;
and the Court further
ORDERS that Plaintiff’s motion to appoint counsel, Dkt. No. 31, is DENIED; and the
Court further
ORDERS that the Clerk shall enter judgment in Defendants’ favor and close this case; and
the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 2, 2026
Albany, New York
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