Houle v. New York State DOCCS et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________________
WILLIAM LAWRENCE HOULE,
Plaintiff,
v. 	9:25-cv-00054 (AJB/TWD)
GJ KALIES, JANE DOE #1, and JOHN DOE #1,
Defendants.
_______________________________________________
APPEARANCES: 	OF COUNSEL:
WILLIAM LAWRENCE HOULE
Plaintiff, pro se
23-B-1028
Collins Correctional Facility
P.O. Box 340
Collins, NY 14034
NEW YORK STATE ATTORNEY GENERAL 	CHI-HSIN E. ENGELHART, ESQ.
Attorney for Defendant GJ Kalies
NYS Office of The Attorney General
The Capitol
Albany, NY 12224
THÉRÈSE WILEY DANCKS, United States Magistrate Judge
REPORT-RECOMMENDATION AND ORDER
I. 	INTRODUCTION
This matter was referred for a report and recommendation by the Hon. Anthony J.
Brindisi, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c).
Currently before the Court is a motion to dismiss and motion for summary judgment in lieu of an
answer, filed by Defendant GJ Kalies (“Defendant” or “Kalies”). Dkt. No. 29. The motion is
fully briefed. Dkt. No. 33, 37, 39. For the reasons set forth below, the Court recommends
Defendant’s motion be denied.
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II. 	BACKGROUND
Plaintiff William Lawrence Houle (“Plaintiff”), an individual in the custody of the New
York State Department of Corrections and Community Supervision (“DOCCS”), commenced
this action pursuant to 42 U.S.C. § 1983 by filing a pro se complaint on January 10, 2025,
alleging violations of his constitutional rights at Mohawk Correctional Facility (“Mohawk”).
Dkt. No. 1. Plaintiff also moved for leave to proceed in forma pauperis (“IFP”). Dkt. No. 2.
The complaint alleges that on November 13, 2023, at approximately 8:00 pm, Plaintiff
was granted permission to pick up his legal mail and medication. Dkt. No. 1 at 4-5.1 When
Plaintiff arrived at the “Westside Chow Hall entrance[,]” he was “surrounded” by Kalies, Jane
Doe #1, and John Doe #1. Id. at 4. Plaintiff was “accused of being out of place” and “visciously
[sic] assaulted and slammed on [a] concrete brick wall and sidewalk.” Id. at 4-5. Plaintiff was
“attacked” by Kalies and Jane Doe #1 while John Doe #1 “simply watched.” Id. at 4. Plaintiff
was also “dragged by the ankles while face down.” Id. at 4.
As a result of this incident, Plaintiff’s “forehead [and] face [were] scraped[,] bumped[,]
bruised [and] bleeding” and his “right eye socket felt broken[.]” Id. at 5. Plaintiff “asked to go
to Walsh hospital on sight” but an unidentified nurse “did nothing[.]” Id. Apparently, as a result
of this incident, Plaintiff received a disciplinary sanction that included “45 days in solitary[.]”
Id. at 6. Plaintiff avers he filed a grievance in relation to his claims. Id. at 7.
On February 5, 2025, the Court granted Plaintiff’s application to proceed IFP and found
Plaintiff’s Eighth Amendment excessive force and failure to intervene claims against defendants
1 Citations to the parties’ submissions will refer to the pagination generated by CM/ECF, the
Court’s electronic filing system. Paragraph numbers are used where documents identified by the
CM/ECF docket number contain consecutively numbered paragraphs.
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Kalies, Jane Doe #1, and John Doe #1 survived sua sponte review and required a response. Dkt.
No. 7. Counsel subsequently appeared on behalf of Defendant. Dkt. No. 26.
Defendant filed the instant motion in lieu of an answer on June 16, 2025. Dkt. No. 29.
Defendant argues Plaintiff failed to exhaust his administrative remedies before commencing this
action, therefore, dismissal of the complaint is warranted under Rule 56 of the Federal Rules of
Civil Procedure. Dkt. No. 29-13 at 5-10. Defendant also seeks dismissal of the complaint
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. Id.
at 10-11.
On August 5, 2025, Plaintiff filed a letter, Dkt. No. 33, which the Court construed as a
partial response to Defendant’s motion, see Dkt. No. 35. On September 22, 2025, Plaintiff
responded, Dkt. No. 37, and Defendant replied, Dkt. No. 39.
III. 	DISCUSSION
A. 	Defendant’s Motion to Dismiss
On a Rule 12(b)(6) motion, a court may dismiss a complaint for “failure to state a claim
upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a
complaint must contain 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)). A claim is plausible on its face “when the ple[d] factual
content allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more
than a sheer possibility that a defendant acted unlawfully.” Id. The factual allegations pled
“must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at
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555. 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 570. A motion to dismiss
will be denied where the allegations “allow[ ] the court to draw the reasonable inference that the
[d]efendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
“In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the
material facts alleged in the complaint as true and construe all reasonable inferences in the
plaintiff’s favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted).
However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Therefore, a plaintiff must provide “more than labels and conclusions” to show entitlement to
relief. Twombly, 550 U.S. at 555.
Where a party is proceeding pro se, the court is obliged to “read [the pro se party’s]
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 Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009) (courts remain obligated to construe pro se complaints liberally even after
Twombly).
1. 	Eighth Amendment Excessive Force and Failure to Intervene Claims
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 prohibition against cruel
and unusual punishment encompasses the use of excessive force against an inmate, who must
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prove two components: (1) subjectively, that the defendant acted wantonly and in bad faith, and
(2) objectively, that the defendant’s actions violated “contemporary standards of decency.”
Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d Cir. 1999) (internal quotation marks omitted)
(citing Hudson v. McMillian, 503 U.S. 1, 8 (1992)). On a motion to dismiss, “a sufficient claim
might describe what happened, who was involved, . . . [the] injury, how severe it was, how long
it lasted, what if any treatment he received and for how long.” Terry v. City of New York, No.
19-CV-09688, 2021 WL 517935, at *4 (S.D.N.Y. Feb. 10, 2021). The key inquiry into a claim
of 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, 503 U.S. at 7 (citing Whitley
v. Albers, 475 U.S. 312, 321-22 (1986)); see also Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.
1973).
In addition, a corrections officer who is present while an assault upon an inmate occurs
may bear responsibility for any resulting constitutional deprivation, even if he did not directly
participate in the use of force. See Tafari v. McCarthy, 714 F. Supp. 2d 317, 342 (N.D.N.Y.
2010). “Indeed, an official has an affirmative duty to intervene on behalf of an individual whose
constitutional rights are being violated by other officers in his or her presence.” Animashaun v.
Toohill, No. 9-21-CV-00372 (MAD/TWD), 2023 WL 6546069, at *5 (N.D.N.Y. June 22, 2023)
(citation omitted), report and recommendation adopted, 2023 WL 6121165 (N.D.N.Y. Sept. 19,
2023). In order to establish liability under this theory, a plaintiff must prove that the defendant
in question (1) possessed actual knowledge of the use by another correction officer 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
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to end the use of excessive force. Tafari, 714 F. Supp. 2d at 342; Jean-Laurent v. Wilkinson, 540
F. Supp. 2d 501, 512 (S.D.N.Y. 2008); Curley v. Vill. of Suffern, 268 F.3d 65, 72 (2d Cir. 2001).
2. 	Analysis
Here, as set forth above, the complaint details when Plaintiff was attacked, by whom,
where, the manner in which he was “attacked”,2 and the injuries he suffered as a result of the
attack. See Dkt. No. 1 at 4-5. “Therefore . . . the [allegations are] sufficient on [their] face to
allow the Court to reach the reasonable conclusion that the Plaintiff has stated a plausible claim
of excessive force.” Banks v. Cnty. of Westchester, 168 F. Supp. 3d 682, 689 (S.D.N.Y. 2016);
compare De Ponceau v. Bruner, No. 09-cv-605 (GTS/DEP), 2012 WL 1030415, at *6 (N.D.N.Y.
Feb. 21, 2012) (finding the complaint legally sufficient to state a plausible excessive force claim
where it included the date, identified the assailants, and described the manner of the attack), and
D’Attore v. Cucharella, No. 12-CV-9, 2012 WL 5601406, at *5-6 (N.D.N.Y. Oct. 3, 2012)
(finding the “[c]omplaint is sufficient on its face” where the plaintiff alleged “when he was
attacked, by whom, the precise manner in which he was attacked, the reason for his attack, and
the injuries he suffered as a result of the attack”), with Colon v. Gunsett, No. 22 CV 635, 2023
WL 2139790, at *7-8 (S.D.N.Y. Feb. 21, 2023) (finding the complaint insufficient to survive a
motion to dismiss where the pro se plaintiff “does not allege who assaulted him, how he was
assaulted, or the injuries he sustained”), and Smith v. Rock, No. 11-CV-282 (NAM/DRH), 2012
WL 929853, at *5 (N.D.N.Y. Feb. 17, 2012) (finding the pro se plaintiff failed to state a claim of
2 Specifically, Plaintiff states, “I was surrounded by three corr. officers . . . I was accused of
being out of place . . . they hurt me pretty good . . . I think one male guard simply watched . . . I
was attacked by Kalies and a female officer . . . I tried to get my mail . . . I had permission to do
so . . . I got there and was viscioulsy [sic] assaulted and slammed on [a] concrete brick wall and
sidewalk [and] dragged by the ankles while face down[.]” Dkt. No. 1 at 4-5.
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excessive force where he alleged “the names of defendants, and the date and place of the attack”
but no “specifics about how he was attacked, why, or what injuries he suffered as a result”).
Insofar as Defendant suggests the excessive force claim should be dismissed because
Plaintiff “at no point specifies who” ‘“visciously [sic] assaulted’ [him], “slammed [him] on the
concrete brick wall, and dragged [him] by the ankles,” Dkt. No. 29-13 at 10, the Court finds
dismissal is not warranted on this basis.
Construed liberally and drawing all reasonable inferences in Plaintiff’s favor, the
allegations that Kalies, Jane Doe #1, and John Doe #2 were present during, or participated in, the
alleged use of force incident are sufficient at the pleading stage to allow a plausible inference
that they all participated in the alleged use of force and failed to intervene. See Mehalick v.
Stowell, No. 9:24-CV-00775 (BKS/TWD), 2024 WL 4930660, at *5 (N.D.N.Y. Dec. 2, 2024);
see, e.g., Johnson v. Mason, No. 9:22-cv-590 (MAD/CFH), 2024 WL 396679, at *7 (N.D.N.Y.
Feb. 2, 2024) (“[C]ourts in the Second Circuit have held that ‘[w]here a plaintiff has properly
alleged a constitutional violation, he is ‘entitled to discovery to determine which officers
participated directly in the alleged constitutional violations and which officers were present and
failed to intervene.”) (second alteration in original) (quoting Gersbacher v. City of New York,
134 F. Supp. 3d 711, 725 (S.D.N.Y. 2015)) (other citation omitted).
Moreover, the complaint gives no suggestion that Plaintiff was uncooperative or
threatening at the time of the alleged incident. See generally Dkt. No. 1. Thus, the Court cannot
say—at the motion to dismiss stage—that this alleged force was applied “in a good faith effort to
maintain or restore discipline,” rather than “maliciously or sadistically” to cause harm. Sims v.
Artuz, 230 F.3d 14, 22 (2d Cir. 2000); see also Phelan v. Hersh, No. 10-CV-11 (GLS/RFT),
2011 WL 6031940, at *12 (N.D.N.Y. Sept. 13, 2011) (“[T]hough [the] [p]laintiff provides sparse
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details of the incident, his claim suggests that [the defendant] hit him maliciously, multiple
times, and without the good-faith effort to maintain discipline. This is enough to validly state an
excessive force claim . . . .”), report and recommendation adopted, 2011 WL 6031071
(N.D.N.Y. Dec. 5, 2011).
In sum, Plaintiff has pled sufficient factual allegations to state a claim for excessive force
against Defendant. Accordingly, the Court recommends Defendant’s motion to dismiss be
denied.
B. 	Defendant’s Motion for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, 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.” Fed. R. Civ. P. 56(a); see Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250-52 (1986). The moving party bears the initial burden of demonstrating
“the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Salahuddin v. Gourd, 467 F.3d 263, 272-73 (2d Cir. 2006). 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.”
Anderson, 477 U.S. at 248; see Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005).
If the moving party satisfies its burden, the nonmoving party must move forward with
specific facts showing there is a genuine issue for trial. Salahuddin, 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). “Conclusory allegations, conjecture and speculation . . . are
insufficient to create a genuine issue of fact.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.
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1998). Accordingly, statements “that are devoid of any specifics, but replete with conclusions,
are insufficient to defeat a properly supported motion for summary judgment.” Bickerstaff v.
Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999).
When considering a motion for summary judgment, the court must resolve all
ambiguities and draw all reasonable inferences against the moving party. Major League
Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). The district court should
not weigh evidence or assess the credibility of witnesses. Hayes v. New York City Dep’t of
Corr., 84 F.3d 614, 619 (2d Cir. 1996); Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996)
(“Assessments of credibility and choices between conflicting versions of the events are matters
for the jury, not for the court on summary judgment.”).
The court is obligated to “read [a pro se party’s] supporting papers liberally, and . . .
interpret them to raise the strongest arguments that they suggest.” Burgos, 14 F.3d at 790.
However, that status “does not relieve [a pro se] 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 and citation omitted).
Additionally, Local Rule 56.1, requires a party moving for summary judgment to file and
serve a statement of material facts. See N.D.N.Y. L.R. 56.1(a) (“The Statement of Material Facts
shall set forth, in numbered paragraphs, a short and concise statement of each material fact about
which the moving party contends there exists no genuine issue.”). 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.” L.R. 56.1(b). “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).
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1. 	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 Ross v. Blake, 578 U.S. 632 (2016).
The Supreme Court has held “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). Furthermore, “the PLRA exhaustion requirement requires proper exhaustion.”
Woodford v. Ngo, 548 U.S. 81, 93 (2006). In order to properly exhaust his administrative
remedies, an incarcerated individual 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, 548 U.S. at 81).
DOCCS has a well-established Inmate Grievance Program (“IGP”), set forth in 7
N.Y.C.R.R. § 701 et seq.
Generally, the DOCCS IGP involves the following procedure for the
filing of grievances. First, an inmate must file a complaint with the
facility’s IGP clerk within twenty-one calendar days of the alleged
occurrence. [7 N.Y.C.R.R.] § 701.5(a). A representative of the
facility’s Inmate Grievance Resolution Committee (“IGRC”) has
sixteen calendar days from receipt of the grievance to informally
resolve the issue. 	Id. § 701.5(b)(1). 	If there is no such informal
resolution, the full IGRC conducts a hearing within sixteen calendar
days of receipt of the grievance and issues a written decision within
two 	working 	days 	of 	the 	conclusion 	of 	the 	hearing. 	Id. 	§§
701.5(b)(2), (3). Second, a grievant may appeal the IGRC decision
to the facility’s superintendent within seven calendar days of receipt
of the IGRC’s written decision. Id. § 701.5(c)(1). If the grievance
involves an institutional issue (as opposed to a DOCCS-wide policy
issue), the superintendent must issue a written decision within
twenty calendar days of receipt of the grievant’s appeal. 	Id. §
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701.5(c)(3)(ii). 	Grievances regarding DOCCS-wide policy issues
are forwarded directly to the central office review committee
(“CORC”) for a decision under the process applicable to the third
step. 	Id. § 701.5(c)(3)(i). 	Third, a grievant may appeal to CORC
within seven working days of receipt of the superintendent’s written
decision. Id. § 701.5(d)(1)(i). CORC is to render a written decision
within 	thirty 	calendar 	days 	of 	receipt 	of 	the 	appeal. 	Id. 	§
701.5(d)(3)(ii).
Hudson v. Kirkey, No. 9:20-CV-00581 (LEK/DJS), 2023 WL 2324988, at *3 (N.D.N.Y. Mar. 2,
2023) (additional citation omitted); see also Jackson v. Jackson, No. 16-CV-8516, 2021 WL
981849, at *4 (S.D.N.Y. Mar. 16, 2021) (explaining “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”) (citing 7
N.Y.C.R.R. § 701.8)). “If all three of these levels of review are exhausted, then the prisoner may
seek relief in federal court pursuant to section 1983.” Johnson v. Mason, No. 9:22-cv-590
(MAD/CFH), 2024 WL 396679, at *3 (N.D.N.Y. Feb. 2, 2024) (citation omitted). “When a
prisoner does not properly exhaust his administrative remedies before filing suit, the action must
be dismissed.” Mateo v. Alexander, No. 08 Civ. 8797, 2010 WL 431718, at *3 (S.D.N.Y. Feb. 9,
2010).
While the PLRA mandates exhaustion of administrative remedies, it also “contains its
own, textual exception to mandatory exhaustion.” Ross, 578 U.S. at 642. Specifically, the
exhaustion requirement contained in § 1997e(a) “hinges on the ‘availability’ of administrative
remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable
ones.” Id. (citing 42 U.S.C. § 1997e(a)). In Ross, the Supreme Court identified three
circumstances in which a court may find administrative remedies are not “available” for PLRA
purposes, holding:
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[A]n 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 . . . . Next, an administrative
scheme might be so opaque that it becomes, practically speaking,
incapable of use . . . . And finally, . . . when prison administrators
thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.
Id. at 643-44. In these situations, exhaustion is not required. Additionally, the Second Circuit
has observed “the three circumstances discussed in Ross do not appear to be exhaustive . . . .”
Williams v. Correction Officer Priatno, 829 F.3d 118, 124 n.2 (2d Cir. 2016).
The failure to exhaust administrative remedies is an affirmative defense. Hubbs v.
Suffolk Cnty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015) (explaining that defendants bear the
burden of proof, but plaintiffs can overcome a showing of non-exhaustion by putting on their
own evidence). Thus, a defendant must first show that a grievance process governs the dispute at
issue and that a plaintiff has failed to exhaust it. Id. In response, a plaintiff can show either
exhaustion or unavailability as outlined in Ross and its progeny. See Booker v. Flint, No. 9:22-
CV-600 (AJB/DJS), 2025 WL 1663999, at *3 (N.D.N.Y. June 12, 2025). Whether remedies are
available is “an objective [test]: that is, would a similarly situated individual of ordinary firmness
have deemed them available.” Lucente v. Cnty. of Suffolk, 980 F.3d 284, 311-12 (2d Cir. 2020)
(citation omitted).
2. 	Local Rule 56.1
In accordance with the Local Rules, Defendant filed and served a Local Rule 56.1
statement of material facts. Dkt. No. 29-12. A notice of the consequences of failing to respond
to a summary judgment motion was sent to Plaintiff. Dkt. No. 30. Plaintiff did not, however,
file a response to Defendant’s statement of material facts. See generally Docket Report.
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Although the Local Rules provide that the Court shall deem admitted any facts that the
nonmoving party fails to “specifically controvert,” L.R. 56.1(b), and pro se plaintiffs are
expected to abide by the Local Rules, pro se plaintiffs are also afforded special solicitude in this
District and Circuit. See Vermont Teddy Bear Co., Inc. v. 1-800 Beargram Co., 373 F.3d 241,
244 (2d Cir. 2004); Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996); Holtz v. Rockefeller &
Co., 258 F.3d 62, 73 (2d Cir. 2001).
Accordingly, in deference to Plaintiff’s pro se status, the Court will exercise its discretion
and independently review the record when evaluating Defendant’s pre-answer motion for
summary judgment, citing to the facts as set forth in Defendant’s statement of facts when
properly supported by the record, and also referring to Plaintiff’s sworn submissions when
practicable.3 See GlobalRock Networks, Inc. v. MCI Commc’ns Servs., Inc., 943 F. Supp. 2d
320, 329 (N.D.N.Y. 2013) (“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.”) (citing Giannullo v. City of New York, 322 F.3d
139, 143 n.5 (2d Cir. 2003)). As to any facts not contained in Defendant’s statement of material
facts, the Court is “required to resolve all ambiguities and draw all permissible factual
inferences” in favor of Plaintiff. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
3 A verified complaint “is to be treated as an affidavit for summary judgment purposes, and
therefore will be considered in determining whether material issues of fact exist . . . . ” Colon v.
Coughlin, 58 F.3d 865, 872 (2d Cir. 1995) (citing Fed. R. Civ. P. 56(e)); see also Brandon v.
Kinter, 938 F.3d 21, 27 n.5 (2d Cir. 2019) (“Brandon’s Amended Complaint was sworn under
penalty of perjury. Therefore, his allegations in the complaint can be considered as evidence for
summary judgment purposes.”).
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3. 	Analysis
As set forth above, this action arises out of Plaintiff’s allegation that Defendant used
excessive force against him on November 13, 2023, at Mohawk. See generally Dkt. No. 1.
Plaintiff’s Eighth Amendment claim is the proper subject for a grievance. Dkt. No. 29-12, ¶ 20.
Plaintiff was housed at Mohawk from March 17, 2023, through November 13, 2023. Id.
¶ 2. There was a fully functioning IGP available to incarcerated individuals at Mohawk. Id. ¶ 5.
From November 13, 2023, through December 28, 2023, Plaintiff was housed at Five Points
Correctional Facility (“Five Points”), which has a fully functioning IGP available to incarcerated
individuals. Id. ¶¶ 3, 6. Since December 28, 2023, Plaintiff has been housed at Collins
Correctional Facility (“Collins”). Id. ¶ 4. Collins also has a fully functioning IGP available to
incarcerated individuals. Id. ¶ 7.
As Plaintiff alleges Defendant violated his Eighth Amendment rights on November 13,
2023, he had until December 4, 2023, to file a grievance with the IGP clerk. Id. ¶ 21.
Additionally, Plaintiff had until December 28, 2023, to request an extension of time to file and
supply mitigating circumstances. Id. ¶ 22.
DOCCS records maintained at Mohawk, Five Points, and Collins demonstrate Plaintiff
never filed a grievance with respect to the alleged November 13, 2023, excessive force incident
or requested an extension of time to do so. Id. ¶ 23. DOCCS records maintained at CORC
reveal Plaintiff has not appealed any facility-level grievances concerning the alleged incident on
November 13, 2023. Id. ¶ 26.
DOCCS records do, however, reflect Plaintiff filed one grievance at Five Points, which
was titled “not following procedure”. Dkt. No. 29-8 at 6. The grievance, dated December 1,
2023, was received on December 12, 2023, and assigned file number FPT-1832-23. Id. In that
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grievance, Plaintiff complained about being “found guilty” for an “assault” during a Tier IIII
disciplinary hearing on November 27, 2023. Dkt. No. 39-3 at 2. However, the grievance makes
no reference to the alleged November 13, 2023, incident at issue. See id. In any event, DOCCS
records show the grievance was dismissed and closed on January 25, 2024, with no subsequent
appeals. Dkt. No. 29-8 at 6.
Based on the record now before the Court, Defendant argues summary judgment is
warranted because Plaintiff failed to exhaust his available administrative remedies prior to
commencing this action. Dkt. No. 29-13 at 3, 5-11; see Bennett v. Onua, No. 09 Civ. 7227, 2010
WL 2159199, at *3 (S.D.N.Y. May 26, 2010) (finding the defendants “adequately supported the
affirmative defense of failure to exhaust” where “a search of the grievance log records . . . did
not reveal any record of a grievance” filed by the plaintiff).
However, “[o]nly in the rarest of cases may summary judgment be granted against a
plaintiff who has not been afforded the opportunity to conduct discovery.” Hellstrom v. U.S.
Dep’t of Veterans Affs., 201 F.3d 94, 97 (2d Cir. 2000); see Johnson, 2024 WL 396679, at *6
(“Since summary judgment is a ‘drastic device,’ it should not be granted when there are major
factual contentions in dispute. This is particularly so when, as here, one party has yet to exercise
its opportunities for pretrial discovery.”) (quoting Nat’l Life Ins. Co. v. Solomon, 529 F.2d 59, 61
(2d Cir. 1975) (citations omitted)). ‘“The nonmoving party must have ‘had the opportunity to
discover information that is essential to his opposition’ to the motion for summary judgment.”’
Id. (quoting Trebor Sportswear Co. v. The Ltd. Stores, Inc., 865 F.2d 506, 511 (2d Cir. 1989)
(other quotation marks and citation omitted)); see also Adams v. Berkman, No. 9:24-CV-0873
(MAD/TWD), 2025 WL 2548797, at *6 (N.D.N.Y. July 11, 2025) (recommending denial of pre-
answer motion for summary judgment where the record was, “incomplete as to the availability of
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Plaintiff’s administrative remedies following the alleged . . . incident. There are certainly issues
that call for further factual development.”), report and recommendation adopted, 2025 WL
2318706, at *4 (N.D.N.Y. Aug. 12, 2025) (“[W]ithout an opportunity to conduct limited
discovery, it is generally more difficult for a pro se plaintiff to submit evidence to rebut a
counseled motion.”); see also, e.g., Sorrentino v. Annucci, No. 9:23-CV-00582 (LEK/TWD),
2025 WL 1033687, at *3 (N.D.N.Y. Feb. 13, 2025), report and recommendation adopted sub
nom., Sorrentino v. Tierney, No. 9:23-CV-582 (LEK/TWD), 2025 WL 841475 (N.D.N.Y. Mar.
18, 2025).
As a result, denial of a pre-answer motion for summary judgment on exhaustion grounds
is appropriate where issues remain as to the availability of administrative remedies during the
relevant period. See, e.g., Hardee v. Thomas, No. 9:23-CV-1142 (LEK/TWD), 2025 WL
777268, at *5 (N.D.N.Y. Feb. 13, 2025) (recommending denial of pre-answer motion for
summary judgment on the basis of exhaustion where the record was “incomplete as to the
availability of administrative remedies” at the correctional facilities where the plaintiff was
housed following the subject incident), report and recommendation adopted, 2025 WL 773577
(N.D.N.Y. Mar. 11, 2025).
Such is there case here given Plaintiff’s statements regarding the availability of his
administrative remedies. See Dkt. No. 33 at 1. Generally, “[t]o successfully allege
unavailability, ‘[a]n inmate must point to some affirmative action by a prison official that
prevented the inmate from availing himself of the grievance procedures.”’ Coleman v. Hamilton,
No. 9:24-CV-455 (AMN/PJE), 2025 WL 2933461, at *9 (N.D.N.Y. Aug. 29, 2025) (second
alteration in original) (quoting Martinaj v. Uhler, No. 9:18-CV-257 (BKS/DJS), 2021 WL
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3793769, at *7 (N.D.N.Y. Aug. 26, 2021) (other citations omitted)), report and recommendation
adopted, 2025 WL 2731047 (N.D.N.Y. Sept. 25, 2025).
Here, in his sworn response to Defendant’s motion for summary judgment, Plaintiff
states, in relevant part, “I never thought or was fully aware of the process of the IGRC rules. I
was immediately shipped to an isolation chamber on 11/14/23. I was not informed of this
avenue to file a complaint. I was simply told by a Dep. Super. Del Mar Hearing Officer to
appeal to the Commissoner [sic] of NYS DOC [sic] with my affidavit.” Dkt. No. 33 at 1.
Liberally construed, and drawing all reasonable inferences against the moving party, this
allegation raises a material question of fact as to whether Plaintiff, who was confined in an
“isolation chamber”, id., was thwarted “from taking advantage of a grievance process through . .
. misrepresentation . . . .” Ross, 578 U.S. at 644;4 see also Adams, 2025 WL 2318706, at *4
(denying pre-answer motion for summary judgment and also finding it “noteworthy that
[p]laintiff stated in his response that he was in the SHU at the time he purportedly filed his
grievances”).
Based on the foregoing, the Court concludes Plaintiff has raised a genuine dispute that
forecloses Defendant’s summary judgment motion at this juncture but that leave to renew after
4 In Ross, the Court noted the “appellate courts have addressed a variety of instances in which
officials misled or threatened individual inmates so as to prevent their use of otherwise proper
procedures. As all those courts have recognized, such interference with an inmate’s pursuit of
relief renders the administrative process unavailable.” Ross, 578 U.S. at 644 (emphasis added)
see, e.g., id. at 644 n.3 (citing, inter alia, Davis v. Hernandez, 798 F.3d 290, 295 (5th Cir. 2015)
(“Grievance procedures are unavailable . . . if the correctional facility’s staff misled the inmate as
to the existence or rules of the grievance process so as to cause the inmate to fail to exhaust such
process”) (emphasis added); Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011) (“[I]f prison
officials misled [a prisoner] into thinking that . . . he had done all he needed to initiate the
grievance process,” then “[a]n administrative remedy is not ‘available’”[.]) (alterations in
original) (emphasis added)).
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discovery is warranted.5 See, e.g., Smith v. Jaynes, No. 9:18-CV-1107 (DNH/DJS), 2020 WL
1149856, at *4 (N.D.N.Y. Feb. 4, 2020), report-recommendation adopted, 2020 WL 1140665
(N.D.N.Y. Mar. 9, 2020). Furthermore, while the Court has the ability to order an exhaustion
hearing, see Messa v. Goord, 652 F.3d 305, 309 (2d Cir. 2011), doing so here without the benefit
of discovery would not be the most efficient manner in which to resolve the factual disputes
presented. See id.
Accordingly, the Court recommends Defendant’s motion for summary judgment be
denied.
IV. 	CONCLUSION
Having carefully reviewed the record, the parties’ submissions, and the applicable law,
and for the reasons stated herein, it is hereby
RECOMMENDED that Defendant’s motion, Dkt. No. 29, be DENIED; and it is further
ORDERED that the Clerk provide to Plaintiff a copy of this Report-Recommendation
and Order, 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).
5 In Perttu v. Richards, 605 U.S. 460 (2025), the Supreme Court held that “parties are entitled to
a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim
protected by the Seventh Amendment.” Perttu, 605 U.S. at 479. Here, because Plaintiff’s
complaint alleges excessive force stemming from the incident on November 13, 2023, the merits
of Plaintiff’s claim do not appear intertwined with the issue of PLRA exhaustion. Therefore, the
issue of exhaustion in this case could properly be decided by the Court and need not be
submitted to a jury under Perttu. See, e.g., Hill v. Tisch, No. 2:02-cv-3901, 2025 WL 1871142,
at *7-8 (E.D.N.Y. July 7, 2025) (holding that exhaustion and the merits were not intertwined
where the plaintiff raised excessive force, failure to protect, and deliberate indifference to
medical care claims).
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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.6 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 (2d Cir. 1993)
(citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C.
§ 636(b)(1); Fed. R. Civ. P. 72.
IT IS SO ORDERED.
Dated: December 1, 2025
Syracuse, New York
6 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 and 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).
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