9:25-cv-00597•Harlow v. Brown et al
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ____________________________________________ DARELL HARLOW, Plaintiff, v. 9:25-CV-0597 (AMN/ML) SGT. BROWN; and MALONE, Correctional Officer, Defendants. ____________________________________________ APPEARANCES: OF COUNSEL: DARELL HARLOW Pro Se Plaintiff 213 Fieldcrest Drive Camillus, New York 13031 LETITIA A. JAMES OLIVIA R. COX, ESQ. Attorney General for the State of New York Assistant Attorney General Counsel for Defendants 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 Darell Harlow (“Plaintiff”) against defendants Sgt. Brown and Malone (collectively “Defendants”), is Defendants’ pre- answer motion for summary judgment pursuant to Fed. R. Civ. P. 56. (Dkt. No. 15.) For the reasons set forth below, I recommend that Defendants’ motion for summary judgment be denied and the Court conduct an exhaustion hearing pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011). Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 1 of 140
2 I. RELEVANT BACKGROUND A. Plaintiff’s Claims At this procedural posture, Plaintiff asserts First Amendment retaliation claims against Defendants related to their alleged issuance of a false misbehavior report that resulted in Plaintiff’s removal from the Honor Dorm, in retaliation for a grievance that Plaintiff filed against another officer. (See generally Dkt. Nos. 1, 5.) B. Defendants’ Statement of Undisputed Material Facts Unless otherwise noted, the following facts were asserted and supported by Defendants in their Statement of Material Facts and not denied by Plaintiff in his response. (Compare Dkt. No. 15, Attach. 1, with Dkt. No. 22 [although Plaintiff responded to Defendants’ motion, he did not file a response to their Statement of Material Facts].) 1. Plaintiff Darell Harlow (DIN: 18-B-1614) was an incarcerated individual in the custody of the New York State Department of Corrections and Community Supervision (“DOCCS”). 2. Plaintiff was housed at Cayuga Correctional Facility (“Cayuga C.F.”) from July 3, 2020, to November 8, 2024.1 3. At all relevant times, incarcerated individuals at Cayuga C.F. were provided with full access to the Incarcerated Grievance Program (“IGP”).2 1 Defendants cite to the Declaration of Michael Medbury at paragraph 12 in support of this fact asserted. (Dkt. No. 15, Attach. 1 at ¶ 2 [citing Dkt. No. 15, Attach. 2 at ¶ 12].) However, support for this fact is found in Mr. Medbury’s declaration at paragraph 13. (Dkt. No. 15, Attach. 2 at ¶ 13 [citing Dkt. No. 15, Attach. 2 at 6-7].) 2 See, supra, note 1. Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 2 of 140
3 4. The IGP is governed by state regulation (7 N.Y.C.R.R. §§ 701.1-701.11) and administered through an agency-level directive (DOCCS Directive 4040). 5. 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 where the grievance was originally filed; and (3) appeals to the Central Office Review Committee (“CORC”). 6. All grievances must be filed within 21 days of the alleged incident.3 7. Extensions of time to file a grievance may be granted, but only upon request in writing within 45 days of the alleged incident.4 8. The IGRC has 16 calendar days after a grievance is filed to resolve it informally or hold a hearing. 9. If an incarcerated individual fails to receive a response from the IGRC within the prescribed time frame, the failure to respond may be construed as a denial, and the incarcerated individual can appeal to the next level. 10. CORC is the final appellate level of the IGP. 11. Plaintiff’s claims in the instant action were the proper subject for a grievance through DOCCS’ IGP. 3 Defendants cite to Mr. Medbury’s Declaration at paragraphs 6 and 13 in support of this fact asserted. (Dkt. No. 15, Attach. 1 at ¶ 6 [citing Dkt. No. 15, Attach. 2 at ¶¶ 6, 13].) However, support for this fact is found in Mr. Medbury’s declaration at paragraph 14. (Dkt. No. 15, Attach. 2 at ¶ 14); see, supra, note 1. 4 Defendants cite to Mr. Medbury’s Declaration at paragraph 14 in support of this fact asserted. (Dkt. No. 15, Attach. 1 at ¶ 7 [citing Dkt. No. 15, Attach. 2 at ¶ 7].) However, support for this fact is found in Mr. Medbury’s declaration at paragraph 15. (Dkt. No. 15, Attach. 2 at ¶ 15); see, supra, note 1. Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 3 of 140
4 12. DOCCS records maintained at Cayuga C.F.’s grievance office show that Plaintiff filed a facility-level grievance at Cayuga C.F. relating to the allegations in this action: Grievance No. CAY-0174-24, titled “Retaliation towards housing location,” filed on August 7, 2024. 13. Upon receipt and logging, Plaintiff’s grievance was designated a code 23 and referred to the Captain’s Office for investigation. 14. The Captain’s Office was instructed to investigate and forward a written report of their findings to the IGRC to be used as part of the Committee’s investigation and IGRC hearing packet. 15. On January 21, 2025, the Captain’s Office forwarded a responsive investigative report to the IGRC. 16. On January 31, 2025, the IGRC denied Plaintiff’s grievance. 17. The denial explained that Plaintiff could appeal the IGRC’s response to the Superintendent by signing and returning the appeal statement to the facility where the grievance was filed within 7 calendar days. 18. The disposition was then forwarded to Groveland Correctional Facility, where Plaintiff was transferred to on November 12, 2024. 19. Cayuga C.F.’s IGP office does not have any record of receiving correspondence from Plaintiff regarding the status of Grievance No. CAY-0174-24. 20. Cayuga C.F.’s IGP office does not have any record of receiving an appeal of Grievance No. CAY-0174-24. 21. DOCCS records maintained at the CORC reveal that Plaintiff appealed several facility-level grievances while housed at Cayuga C.F., but do not reflect an appeal of facility- level Grievance No. CAY-0174-24. Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 4 of 140
5 C. Parties’ Briefing on Defendants’ Motion 1. Defendants’ Motion for Summary Judgment Generally, in support of their motion for summary judgment Defendants argue that Plaintiff failed to exhaust his administrative remedies before commencing this action. (See generally Dkt. No. 15, Attach. 4.) More specifically, Defendants argue that although Plaintiff filed Grievance No. CAY-0174-24, he did not appeal the IGRC’s denial to the Superintendent or to CORC. (Dkt. No. 15, Attach. 4 at 7-8.) Defendants argue that if the Court determines that there is a genuine issue of material fact regarding whether Plaintiff exhausted his available administrative remedies, an evidentiary hearing before a judge is the appropriate fact-finding mechanism because the issue of exhaustion is not intertwined with the merits of the case. (Id. at 9.) 2. Plaintiff’s Response in Opposition Generally, in opposition to Defendants’ motion, Plaintiff argues that Defendants’ motion should be denied because Plaintiff produces the following three exhibits: (1) a letter to S. Wolcott, which establishes the “chain of events and breakdown regarding the mail process,” (2) the last communication with IGP Supervisor (“IGPS”) D. Manti dated October 30, 2024, and (3) a letter dated November 19, 2024, one week after Plaintiff’s transfer to Groveland Correctional Facility, which further “establish[es] retaliation and the coverup.” (Dkt. No. 22 at 1-4.) In addition, Plaintiff asserts that he timely filed his grievance but “was sabotaged by D. Manti IGPS.” (Id.) Attached to Plaintiff’s opposition are the following seven documents: (1) a letter from Plaintiff addressed to “Groveland Corr. Facility – IGPS” dated April 9, 2025, wherein Plaintiff states that he had not received a response from CORC, Cayuga C.F. IGPS, Cayuga C.F. Superintendent, or Cayuga C.F. Captain despite sending letters to Cayuga C.F. IGPS dated Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 5 of 140
6 November 19, 2024, and January 30, 2025, asking that an appeal be sent to CORC; (2) a letter from Plaintiff addressed to “S. Wolcott, IGPS” dated April 24, 2025, wherein Plaintiff stated that he had not received anything in the mail from the Cayuga IGPS since he arrived at Groveland Correctional Facility and noted that he contacted the Cayuga IGPS by mail on November 19, 2024, and January 31, 2025; (3) a letter from D. Manti IGPS to Plaintiff dated September 30, 2024, which noted that Plaintiff’s grievance remained in the investigation process with the Captain’s office; (4) a letter from the D. Manti IGPS dated October 30, 2024, which noted that the time for an IGRC hearing expired and that upon receipt of the investigation from the Captain’s office, the next step will be a pass through to the Superintendent for an untimely response; (5) a letter from Plaintiff to Cayuga C.F. IGPS dated October 13, 2024, wherein Plaintiff stated that he is exercising his right to appeal to the next stage and requesting that his appeal be sent to the Superintendent; (6) a letter from Plaintiff to Cayuga C.F. IGPS dated November 19, 2024, wherein Plaintiff stated that he had not received a timely decision from the Superintendent, he would like to exercise his right to appeal to the next stage, and requested that his appeal be sent to CORC; and (7) a letter from Plaintiff to Cayuga IGPS dated January 30, 2025, wherein Plaintiff stated that he has not received a timely decision from the Superintendent, he would like to exercise his right to appeal to the next stage, and requested that his appeal be sent to CORC. (Dkt. No. 22 at -17.) 3. Defendants’ Reply Generally, in further support of their motion, Defendants assert the following two arguments: (1) Plaintiff failed to comply with N.D.N.Y. L.R. 56.1 and thus, all assertions set forth in their statement of material facts should be deemed admitted; and (2) Plaintiff failed to exhaust his administrative remedies and DOCCS’s administrative remedies were available to Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 6 of 140
7 Plaintiff. (See generally Dkt. No. 23.) More specifically, with respect to their second argument, Defendants assert that the attachments in Plaintiff’s opposition merely establish ongoing correspondence regarding the investigatory status of his grievance and do not provide any indication that Plaintiff attempted to appeal his grievance to the Superintendent or CORC. (Dkt. No. 23 at 5.) In addition, Defendants argue that Plaintiff’s assertion that he was “sabotaged by D. Manti, IGPS” is belied by his own exhibits and amounts to nothing more than speculation and conjecture, which is insufficient to defeat summary judgment. (Id. at 6.) 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).5 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 5 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). Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 7 of 140
8 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.6 (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.)7 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.8 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.); 6 Cusamano v. Sobek, 604 F. Supp. 2d 416, 426 & n.2 (N.D.N.Y. 2009) (Suddaby, J.) (citing cases). 7 Cusamano, 604 F. Supp. 2d at 426 & n.3 (citing cases). 8 Cusamano, 604 F. Supp. 2d at 426-27 & n.4 (citing cases). Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 8 of 140
9 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 statement9–even when the non-movant was proceeding pro se.10 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).11 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 9 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. 10 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.”). 11 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 9 of 140
10 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 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 Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 10 of 140
11 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 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).12 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 12 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 11 of 140
12 ‘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 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 Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 12 of 140
13 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. III. ANALYSIS After carefully considering the matter, I recommend that Defendants’ motion for summary judgment be denied because there is a genuine dispute of material fact regarding whether Plaintiff exhausted his available administrative remedies. “[T]he 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, 18-CV-0291, 2019 WL 8015209, at *11 (N.D.N.Y. Nov. 26, 2019) (Lovric, M.J.) (citing 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 Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 13 of 140
14 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 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.”)), report and recommendation adopted 2020 871197 (N.D.N.Y. Feb. 21, 2020) (Hurd, J.); 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.). Here, Defendants submitted proof in admissible form by way of an affidavit from Michael Medbury, the custodian for all grievance-related records at Cayuga C.F. (Dkt. No. 15, Attach. 2 at ¶ 3.) In his affidavit, Mr. Medbury stated that he conducted a diligent search of DOCCS records for any grievances filed by Plaintiff related to his claims in this action. (Id. at ¶ 16.) Mr. Medbury affirmed that his search revealed that Plaintiff filed Grievance No. CAY- Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 14 of 140
15 0174-24, which was titled “Retaliation towards housing location.” (Id. at ¶¶ 16-17.) Mr. Medbury stated that the IGRC issued a decision denying Grievance No. CAY-0174-24 on January 31, 2025. (Dkt. No. 15, Attach. 2 at ¶ 19.) Finally, Mr. Medbury affirmed that Cayuga IGP Office did not receive an appeal of the IGRC’s denial of Grievance No. CAY-0174-24. (Id. at ¶¶ 23-26.) In addition, Defendants submitted proof in admissible form by way of an affidavit from Rachael Seguin, the custodian of records maintained by CORC. (Dkt. No. 15, Attach. 3 at ¶ 3.) In her affidavit, Ms. Seguin stated that she searched record appeals received by CORC filed by Plaintiff related to his claims in this action. (Id. at ¶ 12.) Ms. Seguin affirmed that Plaintiff appealed several facility-level grievances determinations to CORC but CORC did not receive an appeal of Grievance No. CAY-0174-24. (Id. at ¶ 13.) Notwithstanding, in opposition to Defendants’ motion, Plaintiff presented several documents supporting his assertion that he appealed the IGRC’s untimely response to Grievance No. CAY-0174-24 to the Superintendent and the Superintendent’s non-response to CORC. (Dkt. No. 22 at 6-17.) More specifically, Plaintiff’s opposition included a document that appears to be an appeal to the Superintendent dated October 13, 2024 (Dkt. No. 22 at 15), an appeal to CORC dated November 19, 2024 (id. at 16), and a second appeal to CORC dated January 30, 2025 (id. at 17). Hence, at this juncture, I find that a genuine dispute of material fact exists regarding whether Plaintiff exhausted his administrative remedies by appealing to the Superintendent and to CORC.13 As a result, I recommend that the Court conduct an exhaustion hearing pursuant to 13 The undersigned also notes that there are inconsistencies in the record before the Court. For example, Defendants’ motion papers included an affidavit from Mr. Medbury, wherein he swore under penalty of perjury that, “Had Plaintiff sent correspondence regarding the status of Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 15 of 140
16 Messa v. Goord, 652 F.3d 305 (2d Cir. 2011) to determine whether Plaintiff properly exhausted his administrative remedies.14 ACCORDINGLY, it is respectfully RECOMMENDED that Defendants’ motion for summary judgment (Dkt. No. 15) be DENIED; and it is further respectfully RECOMMENDED that the Court conduct an exhaustion hearing pursuant to Messa v. Goord, 652 F.3d 305 (2d Cir. 2011) to determine whether Plaintiff properly exhausted his administrative remedies; and it is further the instant grievance it would have been maintained as part of Plaintiff’s grievance record. Plaintiff never sent any correspondence regarding the status of Grievance No. CAY-0174-24 to Cayuga’s IGP office.” (Dkt. No. 15, Attach. 2 at ¶¶ 22-23.) Notwithstanding, Plaintiff’s opposition papers included letters from Cayuga IGPS D. Manti which, based on the content, appear to have been sent in response to Plaintiff’s inquiries regarding the status of Grievance No. CAY-0174-24. (Dkt. No. 22 at 10, 12.) 14 The Second Circuit has held that district courts can resolve the exhaustion issue without involving juries. Messa v. Goord, 652 F.3d 305, 308-10 (2d Cir. 2011) (per curiam). The Supreme Court recently narrowed the scope of this non-jury rule in cases—unlike this one— where the exhaustion issue is “intertwined with the merits” of a substantive claim. Perttu v. Richards, 605 U.S. 460, 464 (2025). In Perttu, the prisoner-plaintiff had filed a § 1983 action against a corrections official “for violating his constitutional rights, including his First Amendment right to file grievances,” by interfering with his grievance forms and threatening physical violence if the plaintiff were to file additional forms. Perttu, 605 U.S. at 464. The Supreme Court held that the Seventh Amendment guarantees the right to a jury trial on the exhaustion issue in such cases, since “both [the exhaustion issues and the § 1983 First Amendment claim] depend[ed] on whether [the defendant] did in fact destroy [the plaintiff's] grievances and retaliate against him.” Id. While Perttu alters the legal landscape, its precise impact is not yet understood, and some courts have already applied it narrowly. See, e.g., Hill v. Tisch, 02-CV-3901, 2025 WL 1871142, *8 (E.D.N.Y. July 7, 2025) (collecting cases). Here, though, Plaintiff's claims do not directly relate to his ability to access Cayuga C.F.’s grievance procedure, and the record establishes that he both was aware of, and in fact utilized (if incompletely), the procedure on multiple occasions. Thus, Perttu does not appear to apply to this case. Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 16 of 140
17 ORDERED that the Clerk of the Court shall file a copy of this Report and Recommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.15 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.16 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: May __, 2026 Binghamton, New York 15 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). 16 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. 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). 21 Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 17 of 140
| About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2026 LexisNexis jennifer painter User Name: jennifer painter Date and Time: Thursday, May 21, 2026 1:50 PM EDT Job Number: 285056165 Document (1) 1. Beers v. GMC Client/Matter: -None- Search Terms: 12285 Search Type: Natural Language Narrowed by: Content Type Narrowed by -None- Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 18 of 140
jennifer painter Caution As of: May 21, 2026 5:50 PM Z Beers v. GMC United States District Court for the Northern District of New York May 17, 1999, Decided ; May 17, 1999, Filed 97-CV-482 (NPM/DNH) Reporter 1999 U.S. Dist. LEXIS 12285 *; 1999 WL 325378 MARK W. BEERS and JANET BEERS, Plaintiffs, - against- GENERAL MOTORS CORPORATION, Defendant. Disposition: [*1] GM's motion to dismiss pursuant to Fed. R. Civ. P. 37 GRANTED. Defendant's motion for summary judgment GRANTED in entirety. Core Terms fan, flex, spoliation, assembly, summary judgment, discovery, inspection, sanctions, district court, tire, motion to dismiss, lesser sanction, argues, orders, blade, truck, fault, crucial evidence, court order, exemplar, warning, wheel, summary judgment motion, spoliation of evidence, order to show cause, failure to warn, manufacturer, overinflated, exploded, mounting Case Summary Procedural Posture Defendant automobile manufacturer moved for dismissal pursuant to Fed. R. Civ. P. 37(b)(2) or, alternatively, for summary judgment of plaintiff's product liability case. The motion for dismissal was based on plaintiff's loss of crucial evidence. Overview Plaintiff was injured by a fan installed on a pickup truck that was manufactured by defendant. Plaintiff's expert, in examining it, disassembled and irreparably altered the fan assembly from its condition at the time of the accident and eventually misplaced it. Defendant moved for dismissal of plaintiff's subsequent suit, pursuant to Fed. R. Civ. P. 37(b)(2), after plaintiff failed to comply with numerous court orders to produce the fan for inspection. The court held that plaintiff should be held responsible for both his expert's loss of the crucial evidence and his counsel's defiance of court orders. Dismissal was proper because the spoliated evidence was not circumstantial; due to the nature of the evidence, effective lesser sanctions would be tantamount to summary judgment; lesser sanctions would not remedy defendant's prejudice because it did not know exactly what inspection of the fan would have revealed as a potential defense; no mitigating factors were present; and plaintiff's counsel's disregard of discovery and other orders of the court supported dismissal as a sanction under Rule 37 and under the court's inherent power to control litigation before it. Outcome The court dismissed plaintiff's case, first, because it served as a deterrent to plaintiff's counsel, his expert, and non-parties from engaging in spoliation and disobedience of court orders. Second, the risk of an erroneous judgment was thereby placed on the party who lost the critical evidence. Third, it appeared no other sanction would restore defendant to the position it would have been in absent the spoliation. LexisNexis® Headnotes Civil Procedure > ... > Discovery > Methods of Discovery > Inspection & Production Requests Civil Procedure > Discovery & Disclosure > Discovery > Misconduct During Discovery HN1 Methods of Discovery, Inspection & Production Requests Spoliation of evidence consists of the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 19 of 140
Page 2 of 10 pending or reasonably foreseeable litigation. A federal court may impose sanctions upon a party who engages in spoliation in derogation of court order. Even in the absence of a discovery order, the court may impose sanctions for spoliation, exercising its inherent power to control litigation. Civil Procedure > Appeals > Standards of Review > Clearly Erroneous Review Civil Procedure > ... > Discovery > Methods of Discovery > Inspection & Production Requests HN2 Standards of Review, Clearly Erroneous Review Sanctions for spoliation, including dismissal, are reviewed by the court for abuse of discretion. The court will reject the district court's factual findings in support of its imposition of sanctions only if they are clearly erroneous. Civil Procedure > Discovery & Disclosure > Discovery > Misconduct During Discovery Evidence > Relevance > Preservation of Relevant Evidence > Spoliation HN3 Discovery, Misconduct During Discovery The district court possesses broad discretion in crafting a proper sanction for spoliation but such sanction is to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine. This sanction is fashioned to: (1) deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party. Civil Procedure > Discovery & Disclosure > Discovery > Misconduct During Discovery Evidence > Relevance > Preservation of Relevant Evidence > Spoliation HN4 Discovery, Misconduct During Discovery Outright dismissal of a lawsuit as a sanction for spoliation is within the court's discretion. Dismissal is proper if there is a showing of willfulness, bad faith, or fault on the part of the sanctioned party. Dismissal is not limited only to matters where the offending party has acted with bad faith or willful intent, but is permitted where there is any fault of the sanctioned party. Negligent wrongs, like intentional wrongs, are proper subjects for general deterrence. Civil Procedure > Discovery & Disclosure > Discovery > Misconduct During Discovery Civil Procedure > Discovery & Disclosure > General Overview HN5 Discovery, Misconduct During Discovery The district court possesses the discretion to dismiss for disobedience of discovery orders. Civil Procedure > Discovery & Disclosure > Discovery > Misconduct During Discovery HN6 Discovery, Misconduct During Discovery Dismissal is a drastic remedy and should be imposed only after consideration of alternative, less drastic sanctions. However, in fashioning a sanction, the district court must take into account the ability of the sanction to restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party. Torts > Products Liability > Theories of Liability > Negligence HN7 Theories of Liability, Negligence A manufacturer is not responsible for injuries resulting from substantial alterations or modifications of a product by a third party that render the product defective or otherwise unsafe. 1999 U.S. Dist. LEXIS 12285, *1 Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 20 of 140
Page 3 of 10
Civil Procedure > ... > Summary
Judgment > Supporting Materials > General
Overview
Civil Procedure > ... > Responses > Defenses,
Demurrers & Objections > Waiver & Preservation of
Defenses
HN8 Summary Judgment, Supporting Materials
Failure to file or serve any papers as required by this
rule shall be deemed by the court 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).
Counsel: For Plaintiff: Diane V. Bruns, Esq., LoPinto,
Schlather, Solomon & Salk, Ithaca, New York.
For Defendant: Timothy S. Coon, Esq., Eckert Seamans
Cherin & Mellott, LLC, Pittsburgh, Pennsylvania.
For Defendant: Margaret J. Fowler, Esq., Chernin &
Gold, LLP, Binghamton, New York.
Judges: Neal P. McCurn, Senior United States District
Judge.
Opinion by: Neal P. McCurn
Opinion
MEMORANDUM-DECISION & ORDER
INTRODUCTION
Defendant General Motors ("GM") moves for dismissal
pursuant to Federal Rule of Civil Procedure 37(b)(2),
1 [*2] or alternatively, for summary judgment. The
motion for dismissal is based on plaintiff's loss of crucial
1 Fed. R. Civ. P. 37(b)(2) states:
If a party . . . fails to obey an order to provide or permit
discovery . . . the court in which the action is pending may
make such orders in regard to the failure as are just, and
among others the following: . . . (C) An order striking out
pleadings or parts thereof . . . or dismissing the action or
proceeding . . . or rendering a judgment by default against the
disobedient party[.]
Fed. R. Civ. P. 37(b)(2).
evidence. Plaintiff opposes the sanction of dismissal,
and argues in part that summary judgment is
inappropriate. 2 For the reasons that follow, the court
grants GM's motion to dismiss, or in the alternative,
grants summary judgment.
BACKGROUND
Plaintiff Mark Beers was injured in March of 1994 while
working on a friend's 1984 GM pickup truck. The truck
had a flexible engine cooling fan ("flex fan") installed to
cool the engine. It is undisputed that this flex fan did not
belong on the truck, and was installed by a third party. 3
At some point, while the engine was running, one of the
flex fan blades broke off, penetrated the plastic
protective shroud, and struck plaintiff, injuring him.
[*3] Plaintiff retained legal counsel, and the flex fan
assembly was obtained from the owner of the truck.
Plaintiff's expert, Robert Wehe, then examined the flex
fan assembly. See Wehe Dep. at 11. As part of the
inspection, he disassembled the flex fan assembly,
which irreparably altered it from its condition at the time
of the accident. See GM's Supplemental Br. Ex. 1 at P
20, docket no. 62. Moreover, plaintiff's counsel never
notified GM that the flex fan was to be taken apart, gave
it the opportunity to be present, or allowed it to inspect
the flex fan first. See id. at PP 21-22. No video or photos
were taken at the time of disassembly. See id. at P 23.
Although Wehe now claims the fan blade broke because
of a design defect, he also noted the arm which held
that blade was "severely bent." 4 [*4] Wehe Dep. at 11.
Wehe recognized that this damage could have caused
2 Although GM moves for summary judgment on all of plaintiff's
claims, including failure to warn, see Def. Mem. of Law at 18
n. 7, docket no. 48 and Def. Response at 6-8, docket no. 67,
plaintiff fails to oppose summary judgment on the failure to
warn claim.
3 It appears the flex fan was from a 1974 GM truck. Trucks
designed with flex fans had metal protective shrouds over the
fans. The 1984 type of truck involved in plaintiff's injury was
not designed to have a flex fan, and had a plastic protective
shroud over the fan.
4 The possibility that the flex fan failed due to prior damage is a
major reason GM moves for dismissal. GM's primary defense
theory is that the fan was not defective, but failed because it
had been previously damaged. GM argues it is unable to
present such a defense because the flex fan, except for a few
pieces, is now missing, and thus its expert is not capable of
effectively rendering such an opinion.
1999 U.S. Dist. LEXIS 12285, *1
Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 21 of 140Page 4 of 10
the blade to come off. 5 See id. at 79-80. In response to
the present motion, Wehe now admits that he has
misplaced most of the flex fan assembly, and that it is
lost. See Wehe Aff. at P 3, docket no. 56.
Plaintiff brought suit against GM in the New York
Supreme Court, Cortland County, on March 12, 1997.
The action was removed to the United States District
Court for the Northern District of New York on the basis
of complete diversity.
The file and record in this case are replete with
examples of discovery abuse by plaintiff. GM has
sought to inspect the flex fan assembly for more than a
year. On May 12, 1998, after application by GM,
Magistrate Judge Hurd found that plaintiff failed to
comply with the pretrial scheduling order (in part to
supply the flex fan assembly for inspection), failed to
respond in opposition, and failed to participate in a
telephone conference with the court. He consequently
granted GM permission [*5] to move before this court
for dismissal under either Federal Rule of Civil
Procedure 37 or 56. See Order of May 12, 1998, docket
no. 14. GM then promptly moved for the same.
In opposition to the motion, plaintiff's counsel Diane
Bruns filed an affidavit with this court averring that "the
fan blades and housing are available for defendant's
inspection, should the court [deny GM's motion and]
grant plaintiffs' cross motion to reopen and extend the
discovery period." Bruns Aff. of June 17, 1998 at P8,
docket no. 22. Plaintiff's statement of material facts in
opposition to this first motion stated that "the fan belt
[sic] assembly, which was in the custody of plaintiffs'
expert witness and in storage during his absence, and
the housing are now available for defendant's
inspection." Pl.'s Statement of Material Facts of June
17, 1998 at P6, docket no. 24. Finally, plaintiff's
memorandum in opposition argued that the action
should not be dismissed for discovery abuse because
"plaintiffs . . . have provided . . . access to the fan blade
assembly now that it has become possible to do so." 6
5 At a later portion of his deposition, Wehe maintained that he
had ruled out the flex fan's failure due to the bent arm. See
Wehe Dep. at 81-82. He was unable to explain, however, what
basis he had for ruling out the same. See id. GM argues that
because its expert has not examined the flex fan assembly,
including the bent arm, he is unable to effectively refute Wehe.
6 The reason plaintiff then claimed inability to comply with the
discovery orders was an extended trip by Wehe. See Bruns
Aff. of June 17, 1998 at P3. Wehe apparently had the flex fan
Pl.'s Mem. of Law of June 17, 1998 at 5, docket no. 25.
On August 18, 1998, this court denied [*6] GM's motion
and granted plaintiff's cross-motion to reopen and
extend the discovery period because counsel
represented that plaintiff was now willing to comply with
discovery orders and turn over the flex fan assembly.
Following the court's denial of GM's first motion, plaintiff
continuously failed to turn over the flex fan assembly,
despite counsel's representations that she would do so.
Consequently, on September 14, 1998, GM moved by
order to show cause to compel discovery. Judge Hurd
granted the order to show cause. See Order to Show
Cause [*7] of September 17, 1998, docket no. 35. GM
then withdrew the motion to compel when it appeared
plaintiff would finally turn over the flex fan assembly.
See Coon Letter to Judge Hurd of September 23, 1998,
docket no. 37. Plaintiff's cooperation, however, proved
short-lived. GM again moved for orders to show cause
and compel before Judge Hurd on October 7, 1998.
Judge Hurd granted the order to show cause on the
same date. See Order to Show Cause of October 7,
1998, docket no. 39. In opposition to the motion to
compel, plaintiff's counsel admitted that "defendant's
counsel is correct in stating that the complete fan
assembly has not yet been provided to defendant's
expert." Rather, she stated that Wehe "has moved twice
and placed many of his records and files in storage."
Thus, although some fan blades had been sent to GM,
Wehe had yet to locate the remainder of the fan
assembly. See Bruns Aff. of October 7, 1998 at P3-4,
docket no. 40.
On October 26, 1998, Judge Hurd granted the motion to
compel, and specifically ordered plaintiff to turn over the
flex fan assembly for inspection. ("Plaintiffs shall
produce the complete engine cooling fan to the
attorneys for the defendant [*8] on or before November
6, 1998. Failure to produce shall entitle defendant to
make a dispositive motion or preclusion motion to the
District Judge."). Order of October 26, 1998, docket no.
42. GM then moved for leave to file a summary
judgment motion on the merits of the case on November
3, 1998. On the same day, this court denied the motion
without prejudice to renew. Moreover, it stated that "the
parties are hereby ORDERED to comply in all respects
with the aforementioned order of Magistrate Judge
assembly in storage during his trip. As GM then correctly
pointed out, however, "there is no indication . . . that any
attempt was made [by plaintiff's counsel] to contact Dr. Wehe
during the period of his alleged 'unavailability[.]'" GM Reply of
June 30, 1998 at 2, docket no. 27.
1999 U.S. Dist. LEXIS 12285, *4
Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 22 of 140Page 5 of 10 Hurd." Order of November 3, 1998, docket no. 44. Plaintiff, as of present, has yet to turn over the flex fan assembly. Pursuant to this court's Order of November 3, 1998, and Judge Hurd's Order of October 26, 1998, GM filed the present motion to dismiss, or alternatively moves for summary judgment. In opposition to this present motion, plaintiff finally admits that the remainder of the flex fan assembly has been lost, and can not be found. See Bruns Aff. of February 1, 1999 at P 4, docket no. 55. After motion papers were filed, the United States Court of Appeals for the Second Circuit decided the case of West v. Goodyear Tire and Rubber Co., 167 F.3d 776 (2d Cir. 1999), [*9] which pertained to spoliation of evidence and the propriety of dismissal as a sanction pursuant to Federal Rule of Civil Procedure 37. The court then directed the parties to file supplemental briefs discussing this new case and Rule 37, as each related to dismissal for spoliation of evidence. Oral argument was held in Syracuse, New York on March 24, 1999. There, the court questioned plaintiff's counsel to determine what fault, if any, plaintiff bore for the loss of the flex fan assembly. While the court reserved decision on the motions for dismissal or summary judgment, it did make a finding of fact that counsel and Wehe had been, at minimum, negligent in failing to preserve the crucial evidence. Aside from arguments as to spoliation of evidence, plaintiff also raised a new theory of liability. 7 Defendant argued that plaintiff should not be permitted to assert a new claim so late in case and only in response to summary judgment. [*10] The court noted that discovery and motions were closed, and that it would not allow plaintiff to amend the complaint. The court did, however, instruct plaintiff to file a statement setting forth his new claim, with any references in the record supporting its existence, within seven days. Thereafter, defendant was ordered to file its 7 "Although the 1984 Chevrolet pick-up was designed with a [safer] clutch fan as original equipment, it was also designed in such a way that the clutch fan could be readily and easily replaced with the more dangerous flex fan, resulting in the hazardous combination of a flex fan with an insufficiently protective plastic shroud, and no warnings concerning the hazards." Pl.'s Statement of Design Defect at 2, docket no. 66. opposition within ten days. Finally, the court ordered plaintiff to file a reply within an additional ten days. 8 For the reasons that follow, GM's motion to dismiss under Rule 37 is granted. Alternatively, the court grants summary judgment for defendant. DISCUSSION I. Dismissal GM argues that this matter should be dismissed as a sanction for spoliation of evidence. HN1 Spoliation of evidence, as recently defined by the Second Circuit, consists of "the destruction or significant alteration of evidence, [*11] or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West, 167 F.3d at 779 (citation omitted). A federal court may impose sanctions upon a party who engages in spoliation in derogation of court order. See Fed. R. Civ. P. 37(b)(2); West, 167 F.3d at 779; John B. Hull, Inc. v. Waterbury Petroleum Prods., Inc., 845 F.2d 1172, 1176 (2d Cir. 1988). Even in the absence of a discovery order, the court "may impose sanctions for spoliation, exercising its inherent power to control litigation." West, 167 F.3d at 779; accord Chambers v. NASCO, Inc., 501 U.S. 32, 43-45, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991); Sassower v. Field, 973 F.2d 75, 80-81 (2d Cir. 1992), cert. denied, 507 U.S. 1043, 113 S. Ct. 1879, 123 L. Ed. 2d 497 (1993). HN2 Sanctions for spoliation, including dismissal, are reviewed by the Circuit for abuse of discretion. See West, 167 F.3d at 779 (citing Complaint of Consolidation Coal Co., 123 F.3d 126, 131 (3d Cir. 1997), cert. denied, 523 U.S. 1054, 118 S. Ct. 1380, 140 L. Ed. 2d 526 (1998)); [*12] Sieck v. Russo, 869 F.2d 131, 134 (2d Cir. 1989). The Circuit "will reject the district court's factual findings in support of its imposition of sanctions only if they are clearly erroneous." West, 167 F.3d at 779 (citing Friends of Animals, Inc. v. United States Surgical Corp., 131 F.3d 332, 334 (2d Cir. 1997) (per curiam)). HN3 The district court possesses "broad discretion in crafting a proper sanction for spoliation" but such sanction is to "serve the prophylactic, punitive, and 8 Plaintiff filed his statement of the new theory and defendant responded in opposition. Plaintiff, however, then failed to file a reply as directed by the court. 1999 U.S. Dist. LEXIS 12285, *8 Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 23 of 140
Page 6 of 10
remedial rationales underlying the spoliation doctrine."
Id. This sanction is fashioned to: "(1) deter parties from
engaging in spoliation; (2) place the risk of an erroneous
judgment on the party who wrongfully created the risk;
and (3) restore 'the prejudiced party to the same
position he would have been in absent the wrongful
destruction of evidence by the opposing party.'" Id.
(quoting Kronisch v. United States, 150 F.3d 112, 126
(2d Cir. 1998)).
"HN4 'Outright dismissal of a lawsuit . . . is within the
court's discretion.'" Id. (quoting Chambers, 501 U.S. at
45); see also Fed. R. Civ. P. 37(b)(2)(C).
Dismissal [*13] is proper if there is "a showing of
willfulness, bad faith, or fault on the part of the
sanctioned party." West, 167 F.3d at 779 (citing Jones
v. NFTA, 836 F.2d 731, 734 (2d Cir. 1987)). Contrary to
plaintiff's arguments, dismissal is not limited only to
matters where the offending party has acted with bad
faith or willful intent, but is permitted where there is any
fault of the sanctioned party. See Bobal v. Rensselaer
Polytechnic Institute, 916 F.2d 759, 764 (2d Cir. 1990).
Plaintiff argues that "the court should consider less
drastic measures[.]… where there is no evidence of bad
faith causing the loss of the evidence, because two of
the most important rationales underlying Rule 37
sanctions are to punish an offending party, and to deter
others from acting similarly." Pl.'s Supplemental Brief at
5 (emphasis supplied). Yet, it has been noted that
negligent wrongs, like intentional wrongs, are proper
subjects for general deterrence. See Penthouse Int'l,
Ltd. v. Playboy Enters., Inc., 663 F.2d 371, 387 (2d Cir.
1981) (citing G. Calabresi, The Cost of Accidents, 133-
173 (1970)). Not only have negligent [*14] wrongs been
found proper subjects for deterrence, but federal courts
have dismissed under Rule 37 as punishment for
negligence. See Thiele v. Oddy's Auto and Marine Inc.,
906 F. Supp. 158, 162-63 (W.D.N.Y. 1995) (evidence
negligently lost by plaintiff necessitated dismissal under
Fed. R. Civ. P. 37); Brancaccio v. Mitsubishi Motors Co.,
Inc., 1992 U.S. Dist. LEXIS 11022, 1992 WL 189937, at
*2 (S.D.N.Y. 1992) (plaintiff's negligent loss of the
defective product, after her expert had examined it, but
where defendant had not, necessitated dismissal under
Rule 37). 9 Hence, even under plaintiff's own
9 New York State courts also dismiss for negligent spoliation.
See Squitieri v. City of New York, 248 A.D.2d 201, 202-03,
669 N.Y.S.2d 589, 590 (1st Dep't 1998) ("Spoliation sanctions
such as [dismissal] are not limited to cases where the
evidence was destroyed willfully or in bad faith, since a party's
negligent loss of evidence can be just as fatal to the other
interpretation of the purposes of Rule 37, quoted above,
it is quite clear that courts regard the type of spoliation
undertaken by plaintiff as cause for dismissal.
[*15] Plaintiff should be held responsible for both his
expert's loss of the crucial evidence, and his counsel's
defiance of court orders. This is the type of fault
required for dismissal under Rule 37; although there has
been no allegation that Wehe intentionally discarded the
flex fan assembly, as an expert retained to examine the
actual defective part, he was grossly negligent in
permanently altering, and then even worse, losing the
very item this lawsuit is over. "Gross professional
incompetence no less than deliberate tactical
intransigence may be responsible for the interminable
delays and costs that plague modern complex lawsuits."
Penthouse, 663 F.2d at 387.
Aside from Wehe's loss of the crucial evidence, counsel
bears fault for disobeying several orders of both
Magistrate Judge Hurd and this court in failing to
provide the flex fan assembly, and wasting the scant
judicial resources of the court in assuring plaintiff's
compliance with mandatory discovery. Until this present
motion, counsel never notified the court of her inability
to comply with the court's orders, instead engaging in a
pattern of delay and avoidance, perhaps waiting for
Wehe to return from his [*16] trip, and then hoping
Wehe would rediscover the missing evidence. HN5 The
district court possesses the discretion to dismiss for
disobedience of discovery orders. See Sieck, 869 F.2d
at 134 (we . . . prefer to . . . provide the teeth to enforce
discovery orders by leaving it to the district court to
determine which sanction from among the available
party's ability to present a defense[.]" [citation omitted]);
Kirkland v. New York City Housing Auth., 236 A.D.2d 170,
174-75, 666 N.Y.S.2d 609 (1st Dep't 1997) (noting that
numerous federal and state courts "have found dismissal
warranted when discovery orders were not violated, and even
when the evidence was destroyed prior to the action being
filed . . . notwithstanding that the destruction was not malicious
. . . or in bad faith[.]" [citations omitted]); Mudge, Rose,
Guthrie, Alexander & Ferdon v. Penguin Air Conditioning
Corp., 221 A.D.2d 243, 243, 633 N.Y.S.2d 493 (1st Dep't
1995) ("Dismissal of the amended complaint is also warranted
because of plaintiff's negligent loss of a key piece of evidence
which defendants never had an opportunity to examine[.]"
[citation omitted]) (emphasis supplied). While this federal court
is bound to vindicate the Federal Rules of Civil Procedure, it
surely would be an anomaly if plaintiff was permitted to
negligently spoliate evidence and have his case survive in a
federal diversity action, but have his claim dismissed if the
action was in state court.
1999 U.S. Dist. LEXIS 12285, *12
Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 24 of 140Page 7 of 10
range is appropriate.").
Counsel not only bears fault for disobeying court orders,
but responsibility for carefully supervising the expert
retained. The fact that plaintiff or counsel themselves
did not personally lose the evidence is irrelevant. With
full knowledge of the pretrial discovery order, and
deadlines to turn over evidence, including the flex fan
assembly, counsel continued to retain Wehe despite his
trip, and let him keep the very items required to be
turned over, which were inaccessible while he was on
his trip (and ultimately lost). Even after Wehe returned,
despite numerous representations to the court that the
complete flex fan assembly would be turned over to
defendant, it never was.
Finally, plaintiff sometimes must suffer for the faults of
his lawyers and experts, especially when their acts are
extremely [*17] prejudicial to the opposing party, who
otherwise has no effective remedy. See Link v. Wabash
R.R. Co., 370 U.S. 626, 633-34, 82 S. Ct. 1386, 8 L. Ed.
2d 734 (1962) (client freely selected attorney and is
bound by acts of lawyer-agent); see also James Wm.
Moore, Moore's Federal Practice § 37.50[2][b], at 37-83,
and 37-83 n. 42.2 ("the Supreme Court has rejected the
notion that dismissal of a plaintiff's complaint because of
counsel's unexcused conduct imposes unjust penalty on
the client.").
HN6 Dismissal is a drastic remedy and should be
imposed only after consideration of alternative, less
drastic sanctions. See West, 167 F.3d at 779. 10 The
Second Circuit has also directed, however, that in
fashioning a sanction, the district court must take into
account the ability of the sanction to "restore the
prejudiced party to the same position he would have
been in absent the wrongful destruction of evidence by
the opposing party." Id. As GM's defense revolves
around pre-accident damage to the very item missing, it
will be unable to effectively show that the fan blade
broke for reasons other than a defect. A lesser sanction
is thus inappropriate [*18] as it does not cure the
prejudice to GM. 11
10 Another circuit has noted that the district court should not be
required "to incant a litany of the available lesser sanctions[.]"
Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir.
1997).
11 Alternatively, if lesser sanctions were imposed, such as
evidence preclusion, there is a strong possibility of summary
judgment in GM's favor due to plaintiff's inability to make out a
prima facie case without evidence of the flex fan or pertinent
A. Distinction Between West and the Present Case
Plaintiff argues that this case is similar to West, and
consequently should not be dismissed. In West, the
district court dismissed pursuant to Rule 37 after plaintiff
spoliated certain evidence which prejudiced defendants.
See West v. Goodyear Tire and Rubber Co., 1998 U.S.
Dist. LEXIS 1529, 1998 WL 60942 (S.D.N.Y. 1998). The
Second Circuit reversed, 167 F.3d 776, holding that
other, less severe [*19] sanctions than dismissal should
have been utilized. West is clearly distinguishable.
The West plaintiff was injured when a tire he was
mounting exploded. Plaintiff had already mounted an
identical tire (the "exemplar wheel") which had not
exploded. Defendants' theory of defense was that
plaintiff grossly overinflated both tires, and the second
tire exploded. They planned to show the overinflation by
introducing evidence of the overinflated but unexploded
exemplar wheel. The exemplar wheel, however, was
sent by plaintiff to a lawyer specializing in tire explosion
cases. Fearing the tire would explode, that lawyer
ordered it deflated. As the Circuit noted, "defendants
believe that by deflating the exemplar wheel, West's
lawyers deflated their case." West, 167 F.3d at 780.
Furthermore, defendants planned to introduce the tire
mounting machine and air compressor as circumstantial
evidence that the exploded tire was overinflated. As the
Circuit itself observed, "the compressor was set at an
astronomical pressure of 160 pounds per square inch."
Id. at 778. Though defendants requested inspection of
the compressor and tire mounting machine, and
an [*20] inspection was scheduled, plaintiff sold the
devices before inspection occurred. See id. The devices
were later located, but by then had been left outside and
their conditions had deteriorated. See id. While
defendants' experts were able to examine the devices,
and opined that the devices could have malfunctioned
and caused overinflation, "because West sold these
items and the purchaser left them outside over the
winter, defendant's experts had no way to determine the
condition of the machines when they were in West's
shop at the time of the accident." Id. at 780.
Based upon the spoliation of the exemplar wheel,
compressor and tire mounting machine, the district court
held defendants had been severely prejudiced, and
dismissed the case pursuant to Rule 37. Reversing, the
Circuit held that other less drastic sanctions were
available to the district court which would have
portions of his expert's testimony.
1999 U.S. Dist. LEXIS 12285, *16
Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 25 of 140Page 8 of 10
eliminated the prejudice to defendants without disposing
of the case, such as evidence preclusion and inference
charges. See West, 167 F.3d at 780.
The present matter is entirely different. Most
importantly, the missing or spoliated item, unlike in
West, is not circumstantial [*21] evidence, but the
actual part that failed. There can be no adequate lesser
sanctions, as they would be tantamount to summary
judgment against plaintiff. Cf. Pesce v. General Motors
Corp., 939 F. Supp. 160, 165 (N.D.N.Y. 1996) (Hurd,
M.J.) ("the drastic sanction of preclusion [as to the
missing defective item] would be tantamount to
dismissal of the action."). Although in a defective design
case lesser sanctions may not always prevent the claim,
both federal and New York State courts have dismissed
defective design cases as a result of plaintiff's
spoliation, even where the spoliation occurred
negligently. 12
[*22] Even if the court did impose lesser sanctions,
they would not likely remedy the wrong GM has
suffered. Not only does GM argue that the flex fan was
damaged, precipitating its failure, but GM sought
inspection of the flex fan assembly to develop other
defenses. As GM never examined the complete flex fan
assembly, it does not even know what sanctions it
wants the court to impose because it will never know of
other defenses an inspection may have revealed. See
GM Supplemental Brief at 6-7, 10-11.
In West, the Circuit Court also observed that the
exemplar wheel was allegedly deflated as a purported
public safety measure, which was a mitigating factor in
the spoliation. There are no mitigating factors in the
present matter. Plaintiff's expert lost the crucial evidence
in this case. There is no excuse for such conduct, nor
has plaintiff attempted to argue such. Furthermore,
plaintiff's counsel has utterly failed to explain any efforts
on her part to mitigate her failure to comply with the
12 A defective design claim arguably does not require evidence
of the product which actually failed, since all of the same type
of product are uniformly defective. However, courts have
dismissed for spoliation, even where plaintiff alleged a design
defect. See Brancaccio, 1992 WL 189937, at *2 (case
dismissed for spoliation under Rule 37 where claim of
improper seat belt design was present, when seat belt --and
vehicle-- were disposed of through plaintiff's negligence);
Squitieri v. City of New York, 248 A.D.2d 201, 202, 669
N.Y.S.2d 589, 590 (1st Dep't 1998) (dismissal of third party
complaint alleging defective design for loss of the defective
product).
court's orders.
Another notable distinction between West and the
present case is the type of remedy defendants sought
as a sanction for spoliation. In West, only one of two
defendants [*23] moved to dismiss. The other
defendant moved only for lesser sanctions. This made
clear that alternatives were available other than
dismissal. 13 The circumstances here are different: GM,
the sole defendant, moves for dismissal and argues that
no other sanction will remove the prejudice plaintiff's
spoliation has caused. The court agrees.
Finally, as a last distinction, the district court in West
relied only on plaintiff's spoliation for dismissal. In this
matter, [*24] the court relies not only upon the
spoliation, but counsel's noncompliance with orders of
both a Magistrate Judge and a District Judge. Not only
does this court have the discretion under Rule 37 to
order dismissal for a plaintiff's noncompliance, see Fed.
R. Civ. P. 37, but as the Supreme Court has recognized,
the district court has the inherent power to regulate and
control litigation before it. See Chambers, 501 U.S. at
43-45. If parties were allowed to disregard mandatory
discovery deadlines and orders of the court, orderly and
timely adjudication of cases would be subverted.
In summary, West can be distinguished, and the result
will not be followed here for several reasons: (1) the
evidence spoliated is not circumstantial; (2) due to the
nature of the spoliated evidence, effective lesser
sanctions may well be tantamount to summary
judgment; (3) lesser sanctions may not remedy GM's
prejudice because it does not know exactly what a
physical inspection of the flex fan would have revealed
as a potential defense; (4) no mitigating factors to the
spoliation are present; (5) defendant herein actually
moves for dismissal and argues only dismissal will
protect [*25] its interests adequately; (6) plaintiff's
counsel's disregard of discovery and other orders of the
court support dismissal as a sanction under Rule 37 and
under the court's inherent power to control litigation
before it.
13 As the Circuit stated, "it is noteworthy that Goodyear did not
move for dismissal as a sanction for spoliation; it only sought
to have evidence relating to the spoliated materials excluded
at trial. Only [the second defendant] moved to dismiss the
complaint on the ground of spoliation. Obviously, Goodyear
believed that lesser sanctions, like exclusion of spoliated
evidence, would protect its interests, although Goodyear
would now benefit from the district court's dismissal." West,
167 F.3d at 780 n. 1 (emphasis supplied).
1999 U.S. Dist. LEXIS 12285, *20
Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 26 of 140Page 9 of 10 Having carefully examined and considered the alternatives, no other remedy than dismissal appears appropriate. Only dismissal serves the three prongs the West panel enumerated as to the purposes of Rule 37 and spoliation. 14 First, it will serve as a deterrent to plaintiff's counsel, his expert and non-parties from engaging in spoliation and disobedience of court orders. Second, the risk of an erroneous judgment will be on the party to lose the critical evidence. Third, it appears no other sanction will restore GM to the position it would have been in absent the spoliation. [*26] Accordingly, GM's motion for dismissal is granted. Moreover, as set forth below, the court alternatively grants GM's summary judgment motion. II. Summary Judgment Even if the court did not impose lesser sanctions (which it would if it were not dismissing the case) plaintiff's claims fail as a matter of New York law. 15 Plaintiff's defective design claims are barred by the subsequent modification doctrine of Robinson v. Reed- Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 475, 426 N.Y.S.2d 717, 403 N.E.2d 440 (1980). As the New York Court of Appeals recently reiterated, "HN7 a manufacturer is not responsible for injuries [*27] resulting from substantial alterations or modifications of a product by a third party that render the product defective or otherwise unsafe." Liriano v. Hobart Corp., 92 N.Y.2d 232, 236, 677 N.Y.S.2d 764, 765, 700 N.E.2d 303 (1998) (citing Robinson). This present matter is analogous to a recent Appellate Division, Third Department case upholding the subsequent modification doctrine under similar facts. See Colonial Indem. Ins. Co. v. NYNEX, 260 A.D.2d 14 "(1) Deter parties from engaging in spoliation; (2) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (3) restore the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party." West, 167 F.3d at 779 (internal quotations and citation omitted). 15 In a diversity action, the court must apply the substantive law of New York. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Caiazzo v. Volkswagenwerk A.G., 647 F.2d 241, 243 (2d Cir. 1981); Paul Revere Life Ins. Co. v. Adelman, 1997 U.S. Dist. LEXIS 19804, 1997 WL 773706 (N.D.N.Y. 1997) (Munson, S.J.). 833, 688 N.Y.S.2d 744, 1999 WL 216867, *2 (3d Dep't 1999). There, the Appellate Division granted summary judgment to defendant manufacturer because the undisputed cause of the damages was a part added by a third party subsequent to the product's manufacture. See id. at *1-2. In the case at bar, as in Colonial Indemnity, plaintiff seeks to hold the manufacturer, GM, liable for the failure of a part which was added to the truck by a third party subsequent to the truck's manufacture and sale. Despite GM's assertion that New York law mandates summary judgment on these claims, plaintiff fails to oppose this argument in his opposition papers. 16 The court [*28] agrees that the subsequent modification doctrine of Robinson requires the claims to be dismissed. Moreover, plaintiff's failure to oppose GM's argument is deemed by the court as consent to summary judgment on these claims. [*29] Plaintiff also alleges a failure to warn claim in his complaint, and reiterated the same at oral argument. Plaintiff otherwise fails to mention or support his allegation of failure to warn. In its motion for summary judgment, GM argues that "there is no record evidence to establish that a warning would have prevented this action, to whom a warning should have been given, the content of the warning, and all the other elements 16 Plaintiff's sole opposition to summary judgment on his defective design claims is the assertion of the "new" theory of liability, mainly that the truck was defectively designed when it left GM's hands, as it was designed to allow the less safe flex fan to be installed. It is too late for plaintiff to assert this new theory, especially when his purpose is plainly to avoid summary judgment due to the subsequent modification doctrine. To determine whether the claim was indeed new, or had been present all along, as maintained by plaintiff, the court directed plaintiff to file a statement describing this new theory, supplemented with references to the record supporting its previous existence. Contrary to his assertions, none of the citations plaintiff points to disclosed or set forth this new theory. As discovery and motions are closed, the court declines to permit the new liability theory on either defective design or failure to warn. Notwithstanding the untimeliness of plaintiff's new theory, the court notes and adopts GM's argument that plaintiff's novel theory still has, "at its heart, the issue of whether the flex fan was defective and at the root of that issue lies the question of the cause of the failure; a question that GM cannot adequately defend due to plaintiffs' negligent loss of the fan." Def. Reply at 4 n. 2, docket no. 59. Accordingly, even if the court allowed plaintiff's new theory, it does not alter the court's conclusion that this case must be dismissed for spoliation. 1999 U.S. Dist. LEXIS 12285, *25 Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 27 of 140
Page 10 of 10 necessary to prove this type of claim." Def. Mem. of Law at 18 n. 7, docket no. 48. Plaintiff never responded to or refuted this argument in his opposition papers. After the court ordered supplemental briefing at oral argument, GM again argued the failure to warn claim was unviable. "Plaintiff[] here can point to no evidence or expert opinion in the record that the 1984 truck was defective because it lacked appropriate warnings. In contrast, the record shows that GM did provide information about the proper cooling fan to use on this truck." Def. Response at 8 n. 4, docket no. 67. Despite the court's order at oral argument for plaintiff to reply to GM's Response, plaintiff again not only failed to address GM's argument, but failed to file the reply at all. Thus, [*30] plaintiff has never opposed GM's argument for summary judgment on this claim. This court has dismissed failure to warn claims when plaintiff fails to support the claim at a summary judgment motion. See June v. Lift-A-Loft Equip., Inc., 1992 U.S. Dist. LEXIS 10064, 1992 WL 168181, *2-3 (N.D.N.Y. 1992) (McCurn, C.J.). As with the present case, the June plaintiff left the "record[] devoid of any factual basis for concluding that the [product] carried inadequate warnings" and the court therefore granted summary judgment to defendant. Id. at *3. The same result is required here. HN8 Additionally, Local Rule 7.1(b)(3) states that "failure to file or serve any papers as required by this rule shall be deemed by the court 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). Plaintiff fails to oppose summary judgment on the warning claim although GM specifically argues it is entitled to such. Not only does plaintiff fail to address GM's argument in his opposition papers, but he failed to file a reply addressing similar arguments after the court directed him to file the same. The court considers plaintiff's failures to oppose [*31] as consent to GM's motion for summary judgment on the failure to warn claim. CONCLUSION For the aforementioned reasons, GM's motion to dismiss pursuant to Fed. R. Civ. P. 37 is GRANTED. Dismissal is granted (a) due to plaintiff's spoliation of the crucial evidence under Rule 37; (b) due to counsel's noncompliance with orders of the court, pursuant to Rule 37; and (c) under the inherent authority of the court to control litigation before it. Alternatively, defendant's motion for summary judgment is GRANTED in the entirety. IT IS SO ORDERED. Dated: May 17, 1999 Syracuse, New York Neal P. McCurn Senior United States District Judge JUDGMENT IN A CIVIL CASE - FILED MAY 18 1999 Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered. IT IS ORDERED AND ADJUDGED: GM's motion to dismiss is GRANTED. Defendant's motion for summary judgment is GRANTED in the entirety. May 18, 1999 DATE End of Document 1999 U.S. Dist. LEXIS 12285, *29 Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 28 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 29 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 30 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 31 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 32 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 33 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 34 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 35 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 36 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 37 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 38 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 39 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 40 of 140
Braxton v. Bruen, Not Reported in Fed. Supp. (2020) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 41 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 42 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 43 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 44 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 45 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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.”). Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 46 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 47 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 48 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 49 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 50 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 51 of 140
Campbell v. Prue, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 52 of 140
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 53 of 140
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 54 of 140
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 55 of 140
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 56 of 140
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 57 of 140
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 58 of 140
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 59 of 140
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 60 of 140
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 61 of 140
Devito v. Smithkline Beecham Corp., Not Reported in Fed. Supp. (2004) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 62 of 140
Este-Green v. Astrue, Not Reported in F.Supp.2d (2009) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 63 of 140
Este-Green v. Astrue, Not Reported in F.Supp.2d (2009) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 64 of 140
Este-Green v. Astrue, Not Reported in F.Supp.2d (2009) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 65 of 140
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 66 of 140
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 67 of 140
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 68 of 140
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 69 of 140
Gibbs v. Gadway, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 70 of 140
Gough v. Morris, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 71 of 140
Gough v. Morris, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 72 of 140
Gough v. Morris, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 73 of 140
Gough v. Morris, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 74 of 140
Gough v. Morris, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 75 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag Distinguished by Murphy v. Bailey, C.D.Ill., August 11, 2025 2025 WL 1871142 Only the Westlaw citation is currently available. United States District Court, E.D. New York. Demetrius HILL, Plaintiff, v. Al TISCH, et al., Defendants. 2:02-cv-3901 (NJC) (AYS) | Signed July 7, 2025 Attorneys and Law Firms Demetrius Hill, Rosedale, NY, Pro Se. Arlene S. Zwilling, Suffolk County Attorney, Hauppauge, NY, Callan Wright Tauster, Kyle O. Wood, Suffolk County Department of Law, Hauppauge, NY, for Defendants. OPINION AND ORDER NUSRAT J. CHOUDHURY, United States District Judge: *1 Plaintiff Demetrius Hill (“Mr. Hill”) filed this action on July 8, 2002 against several individuals including Thomas Murphy, Peter Lehman, Helen Geslak, and Gerard Reynolds (collectively, “Defendants”), bringing six claims under 42 U.S.C. § 1983 arising out of his pre-trial detention in the Suffolk County Correction Facility at Riverhead (the “SCCF”). (Compl., ECF No. 1.) 1 Judge Denis R. Hurley, to whom this action was initially assigned, granted summary judgment on Mr. Hill's Second, Third, Fifth, and Sixth Claims (the “Non-Administrative Segregation Claims”) and denied summary judgment on Mr. Hill's First and Fourth Claims (the “Administrative Segregation Claims”), which relate to Mr. Hill's administrative segregation. Hill v. Tisch, No. 02- cv-3901, 2009 WL 3698380 (E.D.N.Y. Oct. 30, 2009); Hill v. Tisch, No. 02-cv-3901, 2015 WL 5821435 (E.D.N.Y. Oct. 5, 2015). 2 This action was reassigned to Judge Joanna Seybert, who ruled on various pre-trial motions and presided over several days of a jury trial, which commenced on January 13, 2025. On the third day of trial, Mr. Hill filed a motion seeking Judge Seybert's recusal (ECF No. 261), which she granted on January 15, 2025. That same day, the action was reassigned to this Court's docket. (Elec. Order, Jan. 15, 2025) On May 29, 2025, the parties appeared for a pre-trial conference. (Min. Entry, May 29, 2025.) At the start of that conference, Mr. Hill hand served Defendants with an omnibus motion raising numerous issues (“Motion”). (Id.) The Court instructed Mr. Hill that motions must be filed on the docket before being raised during a court hearing and ordered him to file the motion on the docket following the hearing. (Id.) Nevertheless, the Court permitted Mr. Hill to argue the motion and ordered Defendants to file a response to Mr. Hill's motion by June 3, 2025. (Id.) *2 On June 2, 2025, Mr. Hill filed the Motion (Mot., ECF No. 271). On June 3, 2025, Defendants filed their response. (Resp., ECF No. 272). On June 16, 2025, Mr. Hill filed a letter, which the Court construes as his reply. (Reply, ECF No. 273.) On June 26, 2025, the Court ordered the parties to file supplemental letters by July 1, 2025, regarding whether, in light of the Supreme Court's June 18, 2025 decision in Perttu v. Richards, 605 U.S. 460, 145 S. Ct. 1793, 222 L.Ed.2d 108 (2025), reconsideration of the Court's October 30, 2009 Order granting summary judgment to Defendants on Plaintiff's Non-Administrative Segregation Claims, see Hill, 2009 WL 3698380, is warranted as previewed in Mr. Hill's Motion (see Mot. at 2–3). On July 1, 2025, Mr. Hill and Defendants filed supplemental letters (Pl.’s Suppl. Ltr., ECF No. 275; Defs.’ Suppl. Ltr., ECF No. 274). On July 2, 2025, Mr. Hill filed a letter in response to Defendant's supplemental letter. (Pl.’s Resp. Ltr., ECF No. 276.) The omnibus Motion is therefore fully briefed. For the reasons addressed below, Mr. Hill's Motion is granted in part, denied in part, and reserved in part. DISCUSSION Mr. Hill makes seven distinct, though at times interrelated, requests in his motion. First, Mr. Hill seeks permission to offer at trial evidence that is not identified on Defendants’ list of proposed exhibits (ECF No. 249-1). (Mot. at 1.) Because Mr. Hill previously failed to identify trial exhibits by any of the numerous deadlines set by the Court, this request constitutes a motion under Rule 16(e) of the Federal Rules of Civil Procedure (“Fed. R. Civ. Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 76 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 2 P.”) for leave to amend Mr. Hill's Second Proposed Pre-Trial Order (Second PPTO, ECF No. 196) to include the additional exhibits. Second, Mr. Hill requests that the Court permit the jury “to decide whether or not the grievance process was available to” him during his incarceration in the SCCF. (Mot. at 2.) 3 This request is a motion for reconsideration under Rule 54(b), Fed. R. Civ. P., of Judge Hurley's October 30, 2009 Order, which granted the Defendants summary judgment on Mr. Hill's Non- Administrative Segregation Claims due to Mr. Hill's failure to exhaust those claims through the SCCF grievance process. See Hill, 2009 WL 3698380. Third, Mr. Hill requests that the jury decide what conditions of confinement he experienced during his administrative segregation in the SCCF. (Mot. at 2.) Specifically, Mr. Hill seeks to offer evidence at trial showing that the following were “all part of the conditions of confinement” he experienced in administrative segregation: “beatings, assaults, handcuffs, shackles,” the requirement to wear a waist chain, and “forcible medication while handcuffed and shackled by six corrections officers.” (Id.) Fourth, Mr. Hill requests that the Court “reinstate” Suffolk County as a defendant in this action. (Id. at 3.) Suffolk County was not named as a defendant in the Complaint. (See Compl. at 1.) On October 27, 2024, Mr. Hill filed a Motion to Amend the Complaint (Mot. Am., ECF No. 230), which included a request to name Suffolk County as a defendant in this case. (Id.) Judge Seybert denied the Motion to Amend during a December 11, 2024 hearing. (See ECF No. 236.) Accordingly, Mr. Hill's request for Suffolk County to be named as a defendant in this action is a motion for reconsideration under Rule 60(b), Fed. R. Civ. P., of Judge Seybert's December 11, 2024 Order denying Mr. Hill's Motion to Amend the Complaint. (See id.) *3 Fifth, Mr. Hill requests that the Court permit him to introduce at trial before the undersigned the “electronic sound recordings” of witness testimony made of during the several days of trial before Judge Seybert, which took place prior to the reassignment of this case to the undersigned. (Mot. at 3.) Sixth, Mr. Hill requests that this Court permit him to offer for admission as evidence at trial sample handcuffs, shackles, and a waist chain. (Id.) Seventh, Mr. Hill requests “that defendant warden Bagnowski and his estate be reinstated as a defendant in this case.” (Id.) The defendant named in the Complaint as Defendant “West Bagnowski, Warden” is in fact Wesley Bednowsky (“Bednowsky”), who is deceased. (Compl. at 1; ECF No. 129.) Judge Seybert terminated Bednowsky from this case on February 21, 2024. (Elec. Order, Feb. 21, 2024.) Accordingly, Mr. Hill's request that Warden Bagnowski be “reinstated as a defendant” in this action constitutes as a motion for reconsideration under Rule 60(b) of Judge Seybert's February 21, 2024 Order terminating Bednowsky as a defendant. (See id.) This Order addresses each of Mr. Hill's requests in the following order. First, this Court evaluates Mr. Hill's second request, which seeks reconsideration of Judge Hurley's grant of summary judgment to Defendants on the Non- Administrative Segregation Claims. Second, this Court addresses Mr. Hill's first, fifth, and six requests, all of which pertain to evidence that Mr. Hill seeks to offer at trial before the undersigned, which is scheduled to begin with jury selection on July 21, 2025. Third, this Court rules on Mr. Hill's fourth and seventh requests, which seek reconsideration of Judge Seybert's December 11, 2024 Order denying Mr. Hill's Motion to Amend the Complaint and her February 21, 2024 Order terminating Bednowsky as a defendant in this action following his death. Finally, this Court addresses Mr. Hill's third request, by which he seeks a ruling that it is for the jury to decide whether the conditions of confinement Mr. Hill experienced when detained in administrative segregation in the SCCF included, among other things, alleged beatings, assaults, and forcible medication while handcuffed and shackled by corrections officers. I. Second Request: Motion for Reconsideration of Judge Hurley's Summary Judgment Order A. Background On January 4, 2008, Defendants moved for summary judgment on all six of Mr. Hill's claims, asserting that Mr. Hill failed to exhaust the administrative remedies available to him prior to bringing suit, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e. (ECF No. 88; ECF No. 88-10 at 1.) The 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 jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 77 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 3 In an October 30, 2009 Order, Judge Hurley found that Mr. Hill “never initiated, let alone exhausted, the SCCF's grievance procedures prior to filing this case.” Hill, 2009 WL 3698380, at *4. Judge Hurley held that Mr. Hill could have raised his Non-Administrative Segregation Claims through the SCCF's grievance procedure, but that this procedure was not an available avenue for raising Mr. Hill's Administrative Segregation Claims because administrative segregation housing decisions were explicitly exempted from the SCCF's grievance procedures. Id. at *4–7. Accordingly, Judge Hurley granted summary judgment to Defendants on Mr. Hill's Non-Administrative Segregation Claims due to his failure to administratively exhaust those claims but denied Defendants summary judgment on Mr. Hill's Administrative Segregation Claims. Id. at *8. As noted, Mr. Hill seeks reconsideration under Rule 54(b) of the ruling dismissing the Non-Administrative Segregation Claims for failure to exhaust administrative remedies as required by the PLRA. (Mot. at 1.) B. Legal Standards *4 Rule 54(b) provides that “any order or other decision, however designated, that adjudicates fewer than all the claims ... does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). However, “[t]he law of the case doctrine ... counsels a court against revisiting its prior rulings in subsequent stages of the same case absent cogent and compelling reasons such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Ali v. Mukasey, 529 F.3d 478, 490 (2d Cir. 2008); 4 see also Reynolds v. HNS Mgmt. Co., No. 23-484-cv, 2025 WL 783733, at *2 (2d Cir. Mar. 12, 2025). Litigants may not use Rule 54(b) to relitigate issues upon which the court has already ruled. Off. Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 167 (2d Cir. 2003) (citing Zdanok v. Glidden Co., 327 F.2d 944, 953 (2d Cir. 1964) (“[W]here litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.”)).“The standard for showing a change in law sufficient to avoid the ... law-of-the-case doctrine demands that more than mere doubt is necessary to reconsider prior decisions.” Stegemann v. United States, 132 F.4th 206, 212 (2d Cir. 2025). “[T]he law of the case will be disregarded only when the court has a clear conviction of error with respect to a point of law on which its previous decision was predicated.” Id. (citing Fogel v. Chestnutt, 668 F.2d 100, 109 (2d Cir. 1981)) (emphasis added). C. Analysis Mr. Hill's arguments for reconsideration of Judge Hurley's grant of summary judgment to Defendants on the Non- Administrative Segregation Claims rest on the following assertions: (1) that enforcing Judge Hurley's summary judgment ruling would constitute legal error by amounting to the application of what Mr. Hill calls “horizonal stare decisis”; (2) that reconsideration is warranted due to intervening changes in the law, including the Supreme Court's decision in Perttu v. Richards, 605 U.S. 460, 145 S. Ct. 1793, 222 L.Ed.2d 108 (2025); and (3) that manifest injustice would result from a denial of reconsideration of Judge Hurley's 2009 ruling, which was issued more than fourteen years ago. These arguments are unpersuasive for the following reasons. Mr. Hill has not identified an intervening change of controlling law, the availability of new evidence, the need to correct clear error or to prevent manifest injustice, or any other cogent and compelling reason for reconsidering the grant of summary judgment to Defendants on the Non-Administrative Segregation Claims. i. Mr. Hill Does Not Identify Authority Calling Into Question a Court's Enforcement of a Summary Judgment Ruling Made in the Same Case. Mr. Hill argues that the application of the law of the case doctrine to his request for reconsideration of the October 30, 2009 Order is tantamount to the application of “horizontal stare decisis,” which has not been recognized by the Supreme Court or Second Circuit. (Mot. at 1.) Mr. Hill relies on three cases to support his argument: Camreta v. Greene, 563 U.S. 692, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011); United States v. Mason, 412 U.S. 391, 93 S.Ct. 2202, 37 L.Ed.2d 22 (1973); and U.S.S.E.C. v. Citigroup Glob. Mkts., Inc., 752 F.3d 285 (2d Cir. 2014). (Mot. at 1–2.) None of these cases contravene the proposition recognized by the Second Circuit in Ali v. Mukasey that the law of the case doctrine counsels a court against revisiting prior rulings in subsequent stages of the same case absent cogent and compelling reasons such as an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice. In Camreta v. Greene, the Supreme Court recognized that “[a] decision of a federal district court judge is not binding Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 78 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 4 precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case.” Camreta, 563 U.S. at 709 n.7, 131 S.Ct. 2020 (emphasis added). Contrary to Mr. Hill's characterization, Camreta does not address the level of deference that a court should afford a prior decision reached in the same case, whether that prior decision is made by the same judge or, as here, a different judge. *5 Nor does Mr. Hill persuasively rely on Citigroup Global Markets, Inc., which he cites as the source of the following quotation: “[A] decision of a federal District Court judge is not binding president in either a different judicial district, the same judicial district or even upon the same judge in a different case.” (Mot. at 2.) This quotation, however, does not appear in Citigroup Global Markets, Inc., and is almost identical to the text from Camreta on which Mr. Hill relies, which as addressed above does not support reconsideration of the October 30, 2009 Order. See Camreta, 563 U.S. at 709 n.7, 131 S.Ct. 2020. Citigroup Global Markets, Inc. does not address whether a court should enforce a prior ruling in a case made by a judge to whom the case was previously assigned, and therefore does not assist Mr. Hill. Mr. Hill's reliance on United States v. Mason is unpersuasive. Mr. Hill argues that in this decision, the Supreme Court “reinforced that district courts are not bound by each other's decisions[,] distinguishing the nature of trial level adjudication from the preceidential function of Appellent courts.” (Mot. at 1–2.) Even if that assertion were true, it does not address the deference afforded by a district court to a decision previously reached in the same case. Moreover, Mr. Hill's characterization of Mason is inaccurate. In that case, the Supreme Court observed that “Supreme Court decisions are on occasion overruled and that the opportunity to overrule them would never arise if litigants did not continue to challenge their validity.” Mason, 412 U.S. at 399, 93 S.Ct. 2202. The Supreme Court further noted that under the doctrine of stare decisis, litigants should “be able to rely on” Supreme Court decisions “and not be needlessly penalized for such reliance.” Id. at 399–400, 93 S.Ct. 2202. The decision does not suggest, much less establish, the proposition that a district court should revisit a prior summary judgment ruling made in the same case by a different judge. ii. Mr. Hill Does Not Identify an Intervening Change in Controlling Law or Clear Error That Warrants Reconsideration of the October 30, 2009 Order. Mr. Hill argues that there “have been intervening and transformative cases that have come out of the United States Supreme Court and the 2nd circuit court of Appeals that would warrant a re-examination of this case from top to bottom.” (Mot. at 3.) He further argues that the Supreme Court's decision in Perttu v. Richards warrants reconsideration of Judge Hurley's October 30, 2009 Order. (Mot. at 3.) 5 Defendants argue that Perttu is distinguishable from this action and that Mr. Hill has not identified any change in controlling law since the October 30, 2009 Order granted Defendants summary judgement on the Non-Administrative Segregation Claims. (Defs.’ Suppl. Ltr. at 2–4.) Judge Hurley analyzed Defendants’ failure-to-exhaust defense under the three-part inquiry laid out in Hemphill v. New York, 380 F.3d 680 (2d Cir. 2004). Hill, 2009 WL 3698380, at *4–8. In order to evaluate whether a plaintiff failed to exhaust administrative remedies, Hemphill required courts to (1) confirm that “administrative remedies were in fact available to the prisoner,” (2) determine that defendants have not forfeited the affirmative defense of non-exhaustion and have not inhibited the plaintiff's exhaustion of remedies, and (3) confirm that no “special circumstances have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements.” Hemphill, 380 F.3d at 686. Hemphill has since been abrogated by Ross v. Blake, 578 U.S. 632, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016), in which the Supreme Court held that the PLRA's exhaustion requirement is mandatory and cannot be excused in special circumstances. Id. at 635. However, in Ross, the Supreme Court maintained that “[a] prisoner need not exhaust remedies if they are not available,” and remanded the case to determine whether the administrative remedies the plaintiff failed to exhaust were available to him. Id. at 636. It explained the meaning of the term “available” in the context of administrative remedies as follows: *6 As we explained in Booth, the ordinary meaning of the word “available” is “capable of use for the accomplishment of a purpose, and that which is accessible or may be obtained.” ... Accordingly, 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 642 (citing Booth v. Churner, 532 U.S. 731, 737–38, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)). Under Ross, a defendant may still successfully raise a failure-to-exhaust defense where a plaintiff has not exhausted remedies that are capable of use to obtain some relief for the challenged action. See id. Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 79 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 5 Ross does not compel reconsideration of the October 30, 2009 Order because Judge Hurley found that the SCCF grievance procedure was available to Mr. Hill as an avenue for raising his Non-Administrative Segregation Claims and that Mr. Hill “never initiated, let alone exhausted,” the SCCF grievance procedure. Hill, 2009 WL 3698380, at *4–6. Even if Judge Hurley applied Ross, the result would have been the same: the Non-Administrative Segregation Claims would not survive summary judgment because Mr. Hill did not invoke or even attempt to invoke grievance procedures that were capable of use to obtain some relief: for the alleged excessive force and forced medication on April 3, 2022; the alleged denial of proper medical care on April 4, 2002; Defendants’ alleged failure to protect Mr. Hill from assault by another inmate and denial of medical care in June 2002; and alleged verbal and physical attacks by SCCF officers. The fact that the Supreme Court decided Ross years after Judge Hurley issued the October 30, 2009 Order does not cause the Court to have “a clear conviction of error with respect to a point of law on which its previous decision was predicated.” Stegemann, 132 F.4th at 212. Accordingly, Ross does not counsel for reconsideration of the grant of summary judgment to Defendants on the Non-Administrative Segregation Claims. Furthermore, the Court has conducted a careful and independent review of the record, including Mr. Hill's Complaint (Compl.), the parties’ submissions relating to Defendants’ Motion for Summary Judgment (ECF Nos. 88, 93, 96–97, 99, 102, 106) and Mr. Hill's Motion for Reconsideration of the October 30, 2009 Order (ECF Nos. 111–113, 115–116), and finds that Judge Hurley did not make any legal error in granting summary judgment to Defendants on the Non-Administrative Segregation Claims in the October 30, 2009 Order. Mr. Hill failed to submit, or even attempt to submit, grievances relating to the conduct at issue through the available grievance procedures. The October 30, 2009 Order addresses each of Mr. Hill's arguments as to why he was not able to pursue the SCCF grievance procedures for his Non- Administrative Segregation Claims with the sole exception of Mr. Hill's argument, raised in the Complaint (Compl. at 14) and in his response to Defendants’ supplemental letter (Pl.’s Resp. Ltr. at 1), that he could not pursue grievances because the officers allegedly involved in the challenged conduct did not “wear name tags” and their “badge numbers are so ‘tiny’ they cant be read.” Compl. at 14; see also Hill, 2009 WL 3698380, at *4–6. However, this argument does not excuse Mr. Hill's failure to exhaust under Second Circuit precedent. Despite Mr. Hill's challenges in identifying the officers involved in the alleged conduct at issue in the Non- Administrative Segregation Claims, Mr. Hill could have filed grievances describing the challenged conduct and the officers allegedly involved even if he was unable to discern the officers’ names or badge numbers. Under the PLRA, “a grievance need only alert the prison to the nature of the wrong for which redress is sought” and “adequately describe the alleged misconduct.” Edwards v. Arocho, 125 F.4th 336, 347 (2d Cir. 2024). The Second Circuit has held that a “grievant is under no obligation to lay out the facts, articulate legal theories, or demand particular relief.” Id. Mr. Hill could have filed grievances describing the challenged conduct and the officers allegedly involved even if he was unable to discern the officers’ names or badge numbers. Furthermore, Mr. Hill has in fact filed at least one SCCF grievance without naming the officers involved. (See ECF No. 97-4 at 5.) In that grievance, which was filed on June 24, 2002, Mr. Hill alleged that unnamed members of the S.E.R.T. team took his property from his cell on April 3, 2002—the same date as the excessive force and forced medication alleged in Mr. Hill's Second Claim. Nevertheless, Mr. Hill did not similarly file a grievance concerning any of his Non-Administrative Segregation Claims, including the claim that he was subjected to excessive force and forced medication on April 3, 2002. Accordingly, Mr. Hill's argument that the SCCF grievance procedures were unavailable to him because he was unable to specifically identify the officers’ names or badge numbers is unpersuasive. *7 Mr. Hill also argues that the Supreme Court's recent decision in Perttu constitutes an intervening change in controlling law for two reasons. First, he contends that administrative grievance procedures were not available to him during his detention and that he “always contended this over the past 23 years.” (Mot. at 3.) Specifically, Mr. Hill asserts that his Sixth Claim, which challenges alleged verbal and physical threats against him: specifically presents the issue that [he] was prevented from utilizing the grievance process, and that it prevented him from being able to petition the government for redress. Just as the claim that Suffolk County corrections officers deliberately wear no name tags and Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 80 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 6 tiny unreadable numbers were worn to prevent prisoners from being able to identify staff or file complaints or grievances. (Mot. at 2.) In conjunction with the Sixth Claim, the Complaint alleges that Mr. Hill “attempted to write various grievances all to no avail because anything security related cannot be grieved an they cant compensate or redress the numerous assaults [he's] suffered.” (Compl. at 14.) Second, Mr. Hill argues that the October 30, 2009 Order “stripped” him “of his 7th Amendment Right to a jury trial” against ten or eleven terminated Defendants “who were directly involve[d]” in the alleged events underlying his Non-Administrative Segregation Claims. (Pl.’s Suppl. Ltr. at 1.) Accordingly, Mr. Hill asks that the Court “reinstate all of the claims and allow them to proceed to trial with the first four defendants [on] July 21, 2025,” permitting the jury to decide whether Defendants have met their burden to prove the affirmative defense that Mr. Hill failed to use available administrative grievance procedures to exhaust prior to filing his Non-Administrative Segregation Claims. (Id. at 2.) Mr. Hill also requests that the Court give the terminated Defendants 30 days to prepare for trial on all six claims and hold a second trial no later than September 2025. (Id.) Perttu v. Richards, 605 U.S. 460, 145 S. Ct. 1793, does not constitute an intervening change in controlling law. There, an incarcerated plaintiff sued a prison employee “for violating his constitutional rights, including his First Amendment right to file grievances.” Id. at 1798. The plaintiff alleged that when “he tried to file grievance forms” reporting the defendant's alleged sexual abuse, the defendant “destroyed them and threatened to kill him if he filed more.” Id. The parties agreed that the facts concerning whether plaintiff exhausted administrative remedies and the First Amendment retaliation claim were intertwined. See id. at 1802–03. Against that backdrop, the Supreme Court held “that parties have a right to a jury trial on PLRA exhaustion when that issue is intertwined with the merits of a claim that falls under the Seventh Amendment.” Id. at 1800. This action is distinguishable from Perttu for two reasons, First, the facts concerning the Non-Administrative Segregation Claims are not intertwined with facts concerning whether Mr. Hill exhausted administrative remedies in the SCCF. Through the Non-Administrative Segregation Claims, Mr. Hill alleges that, while he was detained pre-trial in the SCCF, Defendants subjected him to excessive force, were deliberately indifferent to his need for medical care, failed to protect him from violence by another inmate, and subjected him to verbal and physical threats. The summary judgement record does not show common factual questions concerning these claims and whether Mr. Hill invoked grievance procedures that were capable of affording him relief on such claims. Moreover, whereas in Perttu, the parties agreed that the merits of the plaintiff's First Amendment retaliation claim were intertwined with the question of whether the plaintiff had pursued grievance procedures to report the defendant's alleged unlawful conduct, the parties here do not agree that the merits of Mr. Hill's excessive force, conditions of confinement, and failure to protect claims are similarly intertwined with factual questions concerning exhaustion. (Mot. at 3; Defs.’ Suppl. Ltr. at 2–4.) *8 Second, the Complaint in this action does not allege that Mr. Hill attempted to file grievances related to the specific unlawful conduct alleged in the Non-Administrative Segregation Claims or that he was in any way prevented or discouraged from filing grievances, as noted in the October 30, 2009 Order. Hill, 2009 WL 3698380, at *5. Moreover, the summary judgment record before Judge Hurley showed that Mr. Hill had in fact filed numerous grievances regarding other issues at the SCCF, but simply had not taken any steps to file grievances with respect to the conduct challenged in the Non-Administrative Segregation Claims, which allege assault on April 3, 2002, the denial of medical care following the assault, failure to protect from assault by another inmate while cuffed and shackled, and being subject to physical, verbal, and mental abuse by officers throughout his pre- trial detention at the SCCF. The October 30, 2009 Order considered and rejected Mr. Hill's arguments that his failure to exhaust should be excused on the basis that he had contacted the Sheriff's Office Internal Affairs Department and that the grievance procedures were ambiguous and arbitrary. Hill, 2009 WL 3698380, at *7–8. Rather, although Mr. Hill had filed numerous grievances during his period of pre-trial detention in the SCCF, he did not plead or proffer evidence to show that he experienced retaliation for attempting to file a grievance. See id. at *1, *5. By contrast, in Perttu, the plaintiff did attempt to file grievances, which were allegedly destroyed by the defendant, who also threatened to harm the plaintiff if he sought to pursue administrative remedies. Perttu, 145 S. Ct. at 1798. Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 81 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 7 Perttu thus does not constitute an intervening change of controlling law. This action is therefore similar to actions outside of the Second Circuit in which district courts found Perttu to be inapplicable. Here, as in Wilson-Walker v. Spaid, No. 25-cv-1994, 2025 WL 1738661, 2025 U.S. Dist. LEXIS 118718 (E.D. Pa. June 23, 2025), the question of exhaustion and the merits of plaintiff's claims do not depend on common factual issues. And like Gordon v. Vandalia Corr. Ctr., No. 25- cv-351, 2025 WL 1754548, 2025 U.S. Dist. LEXIS 120979 (S.D. Ill. June 25, 2025), here, there are no factual allegations or facts in the record suggesting that the defendant hindered plaintiff's ability to file grievances. For all of these reasons, Mr. Hill has not identified any intervening change in controlling law that would warrant reconsideration of the October 30, 2009 Order's grant of summary judgment to Defendants on the Non-Administrative Segregation Claims. iii. Mr. Hill Does Not Show that a Manifest Injustice Would Arise if Reconsideration of the October 30, 2009 Order Is Denied. Finally, Mr. Hill argues that a denial of reconsideration of the grant of summary judgment to Defendants on the Non-Administrative Segregation Claims would amount to manifest injustice. (Mot. at 2.) According to Mr. Hill, “judicial decisions issued 10–20 years ago reflect legal standards, facts, and policy considerations that have since evolved and in some instances have been ruled unconstitutional” and that to “Freeze-in-Time the reasoning(or lack there of) of a former judge as binding on a current judge” would thus “be illogical and incompatible” with “[a]ttempting to provide justice in the present case.” (Id.) Mr. Hill's manifest injustice argument does not succeed for two reasons. First, the argument centers on the length of time that has passed since the October 30, 2009 Order and the contention that “legal standards, facts, and policy considerations ... have since evolved.” (Mot. at 2.) But an evolution in the facts or law warrants reconsideration of a prior court order only when a party seeking reconsideration identifies specific newly available evidence or an intervening change in controlling law following the issuance of the decision at issue. See Ali, 529 F.3d at 490 (permitting reconsideration under Rule 54(b) in the event of an intervening change in controlling law or newly available evidence). But Mr. Hill has not satisfied either of these requirements. He has not identified any evidence that was not available to Judge Hurley prior to the issuance of the October 30, 2009 Order or the October 5, 2015 or November 29, 2016 Orders denying reconsideration of that decision. Nor has he identified an intervening change in controlling legal authority for the reasons already addressed. Thus, Mr. Hill has not demonstrated manifest injustice by noting the length of time that has elapsed since the October 25, 2009 Order or by invoking a general concern that the law and policy considerations may have evolved in unspecified ways. *9 Second, Mr. Hill's manifest injustice argument rehearses the arguments he previously made in opposition to Defendants’ summary judgment motion: specifically, that he was prevented from using the SCCF grievance process and pursuing an administrative appeal. (See Opp'n, ECF No. 93 at 11.) In his briefing prior to the issuance of the October 30, 2009 Order, Mr. Hill contends “that he was denied the ability to file grievances on the issues within the complaint” and that the grievances he did file, which related to events outside of those alleged in the Complaint, were met with the determination that the “issues were outside the authority or control of the Warden,” and thus “non-grievable.” (Id. at 10– 11.) The October 30, 2009 Order directly addressed these arguments and found that the SCCF grievance procedure was available to Mr. Hill with respect to his Non-Administrative Segregation Claims. Hill, 2009 WL 3698380, at *4–6; see also Zdanok., 327 F.2d at 953 (“[W]here litigants have once battled for the court's decision, they should neither be required, nor without good reason permitted, to battle for it again.”). Accordingly, Mr. Hill fails to meet the high showing required to secure reconsideration of a summary judgment ruling on the basis of manifest injustice. See United States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009) (“The manifest-injustice ... standard[ ] ... provide[s] relief only in the proverbial ‘rare case.’ ”); see also Corsair Special Situations Fund, L.P. v. Nat'l Res., 595 F. App'x 40, 44 (2d Cir. 2014) (same). * * * Mr. Hill has not shown that reconsideration of the October 30, 2009 Order is warranted to correct any clear error, to account for any newly available evidence or intervening change in controlling law, to prevent manifest injustice, or for any other cogent and compelling reason. His motion for reconsideration of the October 30, 2009 Order's grant of summary judgment to Defendants on the Non-Administrative Segregation Claims is therefore denied. Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 82 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 8 II. First, Fifth, and Sixth Requests Related to Trial Exhibits & Evidence A. Background On June 21, 2017, Magistrate Judge Shields held a telephone conference and ordered Defendants to file and serve on Mr. Hill a proposed pre-trial order and ordered Mr. Hill to file and send the proposed pre-trial trial order back to Defendants with his edits. (ECF No 182.) On July 18, 2017, Defendants filed their Proposed Pre-Trial Order. (ECF No. 183.) On March 26, 2018, Mr. Hill filed his First Proposed Pre-Trial Order (First PPTO, ECF No. 186), in which he stated that he “intend[s] to use all Suffolk policys, and grievances [he] filed and the rule book from 2002 and all the discovery provided.” (Id. at 1.) Judge Shields held a telephone conference on March 31, 2018 to discuss the parties’ proposals. (ECF No. 191.) Judge Shields ordered Mr. Hill to file an amended pre-trial order in which Mr. Hill “identifies the particular polices” referenced in his First Proposed Pre-Trial Order and “every exhibit [that he] intends to use at trial.” (Id.) On October 11, 2018, Mr. Hill filed his Second Proposed Pre-Trial Order, which also did not identify any specific policies or exhibits that Mr. Hill intended to use at trial, but instead contained the broad statement that Mr. Hill “intends to rely on all material Exhibits presented by the Defendants.” (Second PPTO at 4.) Judge Shields “accepted” Mr. Hill's Second Proposed Pre- Trial Order and “interpreted” it to mean that Mr. Hill could “only utilize exhibits provided by Defendants.” (Elec. Order, Oct. 15, 2019.) During the August 26, 2024 pre-trial conference, Judge Seybert ordered the parties to file their proposed trial exhibits by December 2, 2024. (ECF No. 242 at 2.) Mr. Hill did not file any exhibits by the December 2, 2024 deadline. On December 12, 2024, Judge Seybert provided Mr. Hill a “FINAL opportunity to file,” among other things, his proposed trial exhibits by December 20, 2024, and warned him that an “untimely filing of his proposed exhibits shall result in Plaintiff being precluded from introducing said exhibits.” (Elec. Order. Dec. 12, 2024.) Despite this clear warning, Mr. Hill again failed to file any proposed trial exhibits or even to provide a list of his proposed trial exhibits. Instead, on December 19, 2024, Mr. Hill filed a letter stating both that he “has stated over and over that he would utilize all of the exhibits that had been turned over by the defendants,” and that he would use “everything that defendants have previously turned over” to him. (ECF No. 251 at 1.) *10 During the January 6, 2024 pre-trial conference, Judge Seybert ruled that, based on Mr. Hill's representations that he would use Defendants’ proposed trial exhibits, Mr. Hill would only be permitted to use those specific exhibits at trial. (Jan. 6, 2024 Hr'g 12:6–14.) i. Mr. Hill's Requests In the fifth request, Mr. Hill asks that the Court permit the use of “electronic sound recordings” of witness testimony made of during trial before Judge Seybert (the “audio exhibits”). (Mot. at 3.) In the sixth request, Mr. Hill requests permission to offer sample handcuffs, shackles, and a waist chain (the “physical exhibits”) as evidence at trial. (Id.) Finally, in his first request, Mr. Hill seeks leave to amend his Second Proposed Pre-Trial Order to include exhibits not identified in the list of defense exhibits in Defendants’ Proposed Pre- Trial Order (ECF No. 249-1). In the written Motion, Mr. Hill does not identify the specific exhibits that he wishes to offer at trial. (See Mot.) But in response to the Court's questioning during the May 29, 2025 pre-trial conference, Mr. Hill stated that he seeks to offer at trial the following documents produced by Defendants during discovery: (1) a select number of pages from the SCCF April 3, 2002 incident reports; (2) one page of the SCCF's inmate handbook, which describes the incidents that are subject to SCCF's grievance procedures; and (3) one page of Mr. Hill's medical chart from the SCCF (the “documentary exhibits”). (Min. Entry, May 29, 2025.) The Court understands Mr. Hill's requests to offer these audio, physical, and documentary exhibits at trial to constitute a motion to amend his Second Proposed Pre-Trial Order, which did not identify any specific trial exhibits, and as motions in limine seeking this Court's ruling on the admissibility of the audio, physical, and documentary exhibits at issue. The Court addresses whether to grant Mr. Hill leave to amend the Second Proposed Pre-Trial Order to include the proposed exhibits, but reserves decision on whether such exhibits are admissible evidence pending further argument from the parties. ii. Legal Standard A motion to amend a pretrial order is governed by Rule 16(e), Fed. R. Civ. P., which provides that “[t]he court may modify the [pretrial] order issued after a final pretrial conference only to prevent manifest injustice.” Fed. R. Civ. P. 16(e). The Second Circuit has held that “district courts have considerable discretion in the management of trials, and this necessarily Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 83 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 9 includes a certain amount of latitude to deviate from the terms of a pretrial order.” Manley v. AmBase Corp., 337 F.3d 237, 249 (2d Cir. 2003); see also Hogan v. Novartis Pharms. Corp., 494 F. App'x 132, 134 (2d Cir. 2012). District courts should consider the following factors when deciding whether to grant leave to amend a pretrial order: (1) the prejudice or surprise in fact to the opposing party; (2) the ability of the party to cure the prejudice; (3) the extent of disruption of the orderly and efficient trial of the case; and (4) the bad faith or willfulness of the non-compliant party. Prejudice to the party seeking amendment or modification of the order is also relevant, as a trial court should not refuse to modify a pre- trial order where manifest injustice will result. *11 Hogan, 494 F. App'x at 134 (quoting Potthast v. Metro-North R.R. Co., 400 F.3d 143, 153 (2d Cir. 2005)). “The overarching principle in this regard is that ‘Rule 16 was not intended to function as an inflexible straitjacket on the conduct of litigation or to produce an abstract, perfect equivalence between the pretrial papers and the course of litigation; instead, it was intended to insure the efficient resolution of cases and, most importantly, minimize prejudicial surprise.’ ” Mhany Mgmt. Inc. v. Inc. Vill. of Garden City, No. 05-cv-2301, 2013 WL 1821113, at *3 (E.D.N.Y. Apr. 29, 2013) (quoting Lamborn v. Dittmer, 873 F.2d 522, 527 (2d Cir.1989)). B. Application As a preliminary matter, to the extent that all witnesses appear in person for trial, which is scheduled to begin with jury selection on July 21, 2025, the Court will not permit Mr. Hill to play for the jury electronic audio recordings of witness testimony taken during trial before Judge Seybert on January 13 and 14, 2025. One of the central purposes of trial is to permit the fact finder to hear live witness testimony and to make credibility determinations based on numerous factors, including witness demeanor. Mr. Hill's request to replay as “audio exhibits” recordings of witness testimony from the prior trial undermines this purpose. However, in the event that a party lays the proper foundation to impeach a witness based on a prior inconsistent statement made during the January 2025 trial, the written transcript of those specific statements may be used for impeachment purposes under the Federal Rules of Evidence. See e.g., Fed. R. Evid. 801(d) (1)(A) (declarant-witness's prior inconsistent statements); Fed. R. Evid. 613(b) (impeachment by extrinsic evidence of prior inconsistent statement). In such situations, however, the proponent of the prior inconsistent statement must lay the proper foundation by identifying the prior inconsistent statement, providing the witness the opportunity to explain, and giving the opposite party an opportunity to question the witness about the statement. United States v. Ghailani, 761 F. Supp. 2d 114, 118 (S.D.N.Y. 2011). Turning to the physical and documentary exhibits, the Court applies the factors set forth in Potthast v. Metro-North R.R. Co. to determine whether to permit this amendment to Mr. Hill's Second Proposed Pre-Trial Order. The first Potthast factor—prejudice or surprise in fact to the opposing party—counsels in favor of granting leave to amend the Second Proposed Pre-Trial Order to include the documentary exhibits, but against granting leave to amend to include the physical exhibits. The three documents that Mr. Hill seeks to offer at trial were produced by Defendants during discovery, which closed more than six years ago. See Elec. Order Mar. 28, 2018 (certifying completion of discovery). In his First Proposed Pre-Trial Order, Mr. Hill indicated that he “intend[ed] to use all Suffolk policys, and grievances [he] filed and the rule book from 2002 and all the discovery provided,” but failed to identify specific documents from Defendants’ discovery production. (First PPTO at 1 (emphasis added).) The three proposed exhibits are not voluminous and are in Defendants’ possession. Thus, although Mr. Hill only notified Defendants of the specific proposed exhibits during the May 29, 2025 pre-trial conference—more than seven weeks before trial—there is minimal to no prejudice to Defendants from permitting Mr. Hill to offer the proposed documentary exhibits at trial. See Min. Entry, May 29, 2025; see Maehr v. NRG Home Solar, No. 2:16-cv-3897, 2019 WL 1559423, at *5–6 (E.D.N.Y. Apr. 10, 2019) (granting leave to amend joint pre-trial order to include medical records for lack of prejudice since records were in defendant's possession for two years); Giannone v. Deutsche Bank Sec., Inc., No. 03-cv-9665, 2005 WL 3577134, *2 (S.D.N.Y. Dec. 30, 2005) (granting leave to amend pretrial order to include additional exhibits 38 days before trial, noting “ample time ... to cure any minimal Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 84 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 10 prejudice”). By contrast, with respect to the proposed physical exhibits—sample handcuffs, shackles, and a waist chain— Mr. Hill has not provided the specific objects that he seeks to offer at trial and none of these objects were produced by Defendants in discovery or even mentioned obliquely in Mr. Hill's First Proposed Pre-Trial Order or Second Proposed Pre-Trial Order. Because Defendants only learned about Mr. Hill's intention to offer these objects into evidence at trial on May 29, 2025, there is some prejudice and surprise in fact to Defendants, which counsels against granting leave to amend. *12 The second Potthast factor—the ability of the party to cure the prejudice—also weighs in favor of granting leave to amend regarding the documentary exhibits, but against granting leave to amend with respect to the physical exhibits. Defendants have been in possession of the documentary evidence that Mr. Hill seeks to offer as trial exhibits for at least six years because they themselves produced these documents to Mr. Hill during discovery. (See Elec. Order, Mar. 28, 2018.) Although Mr. Hill has not identified the specific pages of the April 3, 2002 incident reports or the specific page of his medical chart that he seeks to offer into evidence at trial, the incident reports and medical chart are not voluminous. Further, during the May 29, 2025 pre-trial conference, the Court ordered Mr. Hill to bring copies of the specific pages of the incident reports and medical chart that he seeks to offer at trial to the next pre-trial conference with the Court, which is scheduled to take place on July 8, 2025. (Min. Entry, May 29, 2025; ECF No. 269; Elec. Order, June 26, 2025.) Defendants thus clearly can cure any prejudice. By contrast, with respect to the physical exhibits, while the Court similarly ordered Mr. Hill to bring the proposed physical exhibits to the next pre-trial conference, these are not items that were produced by Defendants during discovery or identified by Mr. Hill as potential trial exhibits any time prior to the May 29, 2025 pre- trial conference. Nevertheless, Defendants have the ability to cure prejudice because actual restraints of the type used on Mr. Hill are in their own possession. Thus, Defendants ability to cure any prejudice with respect to Mr. Hill's ability to offer such evidence is limited. The third Potthast element—the extent of disruption of the orderly and efficient trial of the case—like the prior factors, weighs in favor of granting leave to amend for the documentary exhibits but against granting leave to amend for the physical exhibits. The addition of three, non-voluminous documents into evidence at trial will not greatly impact the trial process or delay proceedings, especially because there is no plausible objection to the authenticity of the proposed exhibits, all of which Defendants produced in discovery. See PharmacyChecker.com v. Nat'l Ass'n of Bds. of Pharmacy, No. 19-cv-7577, 2023 WL 2973038, at *4 (S.D.N.Y. Mar. 28, 2023). By contrast, Mr. Hill's attempt to offer the proposed physical exhibits would disrupt an orderly and efficient trial for two reasons. First, the introduction of the physical exhibits raises evidentiary questions under Federal Rules of Evidence 401, 402, and 403. Mr. Hill does not have the actual handcuffs, shackles, and waist chain that he was required to wear in the SCCF, but seeks to offer samples into evidence in order to show the jury certain aspects of the conditions under which he was confined in administrative segregation. There is no record that Mr. Hill requested such physical evidence or even photographs of such evidence from Defendants during discovery. Furthermore, at the May 29, 2025 pre- trial conference, Mr. Hill has requested that the Court asked the United States Marshal Service to provide handcuffs, shackles, and a waist chain for Mr. Hill to offer as evidence at trial. Mr. Hill's request that the Court ask a different law enforcement agency to provide sample physical evidence for this trial raises questions about relevance under Rule 401 and whether any probative value of such evidence is substantially outweighed by the risk of unfair prejudice under Rule 403. The fourth Potthast element—the bad faith or willfulness of the non-compliant party—is neutral as to the documentary exhibits and, like the first three Potthast factors, weighs against granting leave to amend for the physical exhibits. Until the May 29, 2025 pre-trial conference, Mr. Hill failed to identify with any specificity any documentary exhibits that he would seek to offer at trial and completely failed to disclose that he sought to offer physical handcuffs, shackles or a waist chain. This failure is especially problematic given that the Court provided Mr. Hill with numerous opportunities to disclose his trial exhibits. Not only did the Court permit Mr. Hill to file two pre-trial orders, Judge Seybert also set two additional deadlines, in the weeks prior to the January 2025 trial, in an effort to elicit Mr. Hill's compliance. (First PPTO; Second PPTO; ECF No. 242; Elec. Order. Dec. 12, 2024.) Nevertheless, this fourth factor is neutral with respect to the documentary exhibits because although Mr. Hill did not identify the three specific documentary exhibits until the May 29, 2025 conference, he did state in his First Proposed Pre- Trial Order that he “intend[ed] to use ... all the discovery provided” at trial. (First PPTO a 1.) Furthermore, in a December 19, 2024 letter response to Judge Seybert's order Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 85 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 11 setting a final deadline to disclose his trial exhibits, Mr. Hill stated that he intended to use “everything that defendants have previously turned over” him at trial. (ECF No. 251 at 1; see also Elec. Order, Dec. 12, 2024.) By contrast, with respect to the physical exhibits, Mr. Hill made no indication that he would seek to offer handcuffs, shackles, or a waist chain at trial until the May 29, 2025 pre-trial conference. There is no excuse for this delay because Mr. Hill himself has been painfully aware that he was required to wear these items for a significant part of each day while detained in administrative segregation at the SCCF. These facts demonstrate that Mr. Hill willfully failed to comply with the Court's orders to identify the proposed physical evidence as trial exhibits in his two Proposed Pre-Trial Orders and by the December 2 and 20, 2024 deadlines. *13 Finally, Mr. Hill may experience some prejudice from being denied the opportunity to include the three proposed documentary exhibits and physical exhibits on his Second Proposed Pre-Trial Order. The Court cannot fully assess the degree of prejudice without seeing the actual exhibits at issue, which Mr. Hill is required to bring to the July 8, 2025 pre-trial conference. But to bar Mr. Hill from offering at trial potentially relevant documents that are relatively short, were produced by Defendants, and have been in Defendants’ possession for more than six years, may be a manifest injustice. See Maehr, 2019 WL 1559423, at *5 (granting plaintiff leave to amend the joint pre-trial order to include medical records that defendant possessed for two years was necessary to prevent a manifest injustice); Mhany Mgmt. Inc., 2013 WL 1821113, at *6 (finding that “manifest injustice may result if” plaintiffs were denied leave to amend the joint pre-trial order to add four witnesses to counter defendants’ similarly situated witnesses). However, denying Mr. Hill the ability to offer at trial sample handcuffs, shackles, and a waist chain does not rise to the level of manifest injustice because: (1) Mr. Hill can testify about the circumstances under which he was required to wear these restraints while detained in the SCCF and the resulting impact on him; (2) Mr. Hill does not possess these items; (3) Mr. Hill does not appear to have pursued any discovery from Defendants about these items; (4) Mr. Hill has asked the Court to order the United States Marshals to provide sample items for him to offer into evidence at trial even though such items are not necessarily the same restraints as those he was required to wear in the SCCF, raising questions about relevance under Rule 401 and prejudice under Rule 403; and (5) Mr. Hill does not appear to have explored less onerous alternatives, such as seeking to offer into evidence photographs of the items rather than the actual items themselves. 6 Considering all of the Potthast factors, the Court grants Mr. Hill leave to amend his Second Proposed Pre-Trial Order to add the three specific documentary exhibits identified during the May 29, 2025 pre-trial conference, but denies leave to amend to add the physical exhibits. At the July 2, 2025 pre- trial conference, Mr. Hill is anticipated to provide the specific documentary exhibits to the Court and Defendants. The Court requires the parties to meet and confer about Mr. Hill's ability to show the jury a photograph of handcuffs, shackles, and a waist chain of the type used to restrain Mr. Hill when he was detained pre-trial in Administrative Segregation in the SCCF. The Court reserves decision on whether the three proposed documentary exhibits and the proposed physical exhibits are admissible pending further argument from the parties at the July 8, 2025 pre-trial conference. III. Mr. Hill's Fourth and Seventh Requests Relating to “Reinstating” Suffolk County and Bednowsky as Defendants A. Background Mr. Hill's fourth request is that the Court “reinstate” Suffolk County as a defendant in this action. (Mot. at 3.) His seventh request is that “that defendant warden Bagnowski and his estate be reinstated as a defendant in this case.” (Id.) As noted above, Suffolk County has never been a party to this action. (See Compl.) Mr. Hill filed a Motion to Amend the Complaint on October 27, 2024, which sought to name Suffolk County as a defendant in this case, Judge Seybert denied that motion during a December 11, 2024 hearing. (Mot. Am.; ECF No. 236 at 5.) Therefore, Mr. Hill's fourth request constitutes a motion for reconsideration under Rule 60(b), Fed. R. Civ. P., of Judge Seybert's December 11, 2024 denial of Mr. Hill's Motion to Amend. Bednowsky was a Defendant in this case until Judge Seybert terminated him on February 21, 2024. (Compl. at 1; Elec. Order, Feb. 21, 2024.) Mr. Hill's seventh request to reinstate Bednowsky and his estate therefore constitutes a motion for reconsideration under Rule 60(b) of Judge Seybert's February 21, 2024 Order terminating Bednowsky from the case and a motion under Rule 25(a) to substitute Bednowsky's estate for Bednowsky, if reinstatement is permitted. 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Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 12 i. Legal Standard Rule 60(b), Fed. R. Civ. P., provides for relief from a final judgment, order, or proceeding in the case of: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud ..., misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. *14 Fed. R. Civ. P. 60(b). A Rule 60(b) motion “must be made within a reasonable time” and motions brought pursuant to Rule 60(b)(1)–(3) must be made “no more than a year after the entry of the ... order ....” Fed. R. Civ. P. 60(c)(1). The standard for granting a Rule 60(b) motion for reconsideration is “strict.” Commerzbank AG v. U.S. Bank, N.A., 100 F.4th 362, 377 (2d Cir. 2024). The decision to grant or deny such a motion rests within “the sound discretion of the district court.” Aczel v. Labonia, 584 F.3d 52, 61 (2d Cir. 2009). “The major grounds justifying reconsideration are an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Commerzbank AG, 100 F.4th at 377. In other words, under Rule 60(b), “reconsideration will generally be denied unless the moving party can point to controlling decisions or data that the court overlooked ... that might reasonably be expected to alter the conclusion reached by the court.” Commerzbank AG, 100 F.4th at 377. A Rule 60(b) motion for reconsideration is “not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a second bite at the apple.” Analytical Surveys, Inc. v. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012). “[A] Rule 60(b) motion is properly denied where it seeks only to relitigate issues already decided.” Pastor v. P'ship for Child.’s Rts., 856 F. App'x 343, 345 (2d Cir. 2021) (citing Zerman v. Jacobs, 751 F.2d 82, 84–85 (2d Cir. 1984)). Rule 25(a)(1), Fed. R. Civ. P., provides “if a party dies and the claim is not extinguished, ... [a] motion for substitution may be made by any party or by the decedent's successor or representative. If the motion is not made within 90 days after service of a statement noting the death, the action by or against the decedent must be dismissed.” ii. Application 1. Suffolk County Mr. Hill has not offered any argument as to why his request for reconsideration of Judge Seybert's December 11, 2023 Order denying his Motion to Amend satisfies any of the criteria set forth in Rule 60(b) for securing reconsideration of a final order. He has not identified any “intervening change of controlling law, ... new evidence,” or a “need to correct a clear error or prevent manifest injustice” that would warrant reconsideration. Commerzbank AG, 100 F.4th at 377. On this basis alone, the Court denies Mr. Hill's request to reinstate Suffolk County as a defendant in this case. However, Mr. Hill's motion for reconsideration also attempts to relitigate issues that were considered and denied by Judge Seybert, and it is therefore denied on that basis as well. First, Mr. Hill argues that because the Complaint names Sheriff Al Tisch (“Tisch”) as a defendant, he should now be able to “reinstate” Suffolk County. (Mot. at 3.) Mr. Hill made this same argument during the December 11, 2023 hearing. (Dec. 11, 2023 Hr'g 23:7–15.) Mr. Hill argued that the Motion to Amend should be construed as a motion to substitute Suffolk County for Tisch. (Id.) Judge Seybert rejected this argument during the hearing, finding that the Motion to Amend sought to add, not substitute, Suffolk County as a Defendant. (Id. 23:15–17.) Mr. Hill's motion for reconsideration on the basis that Tisch is already a Defendant is an attempt to relitigate an issue that has already been decided, and is therefore denied. See Pastor, 856 F. App'x at 345. *15 Second, Mr. Hill argues that he “is prepared to present his case ... against the policies procedures customs & practices implemented by the County” in its rulebook. (Mot. at 3.) Defendants argue that Mr. Hill has not “ever asserted a Monell claim” against Suffolk County. Resp. at 3–4; see also Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 87 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 13 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Judge Seybert previously resolved this dispute. In the Motion to Amend, Mr. Hill asserted that “[r]eading the complaint from start to finish, there is no question that the defendants knew [he] intended to name Suffolk County.” (Mot. Am. at 1.) Judge Seybert rejected the argument, finding that there was no reason to impute notice to Suffolk County at such a late stage of the litigation. (Dec. 11, 2023 Hr'g 14:20–15:3.) Mr. Hill thus simply seeks to relitigate an issue that has already been decided—rather than identifying any intervening change of controlling law, newly available evidence, or the need to correct a clear error or prevent manifest injustice—and the motion for reconsideration is thus denied for this reason as well. See Pastor, 856 F. App'x at 345. 7 2. Bednowsky and the Bednowsky Estate Mr. Hill provides no reason whatsoever as to why Bednowsky should be reinstated as a defendant or, if such reinstatement is granted, why the Bednowsky estate should be substituted for him as a defendant. (See Mot. at 3.) Judge Seybert's February 21, 2024 Order terminating Bednowsky and several other Defendants was entered to reflect the parties’ understanding of the remaining Defendants in this action. The relevant procedural history is as follows. On March 3, 2016, counsel for Defendants, including Bednowsky, filed a letter arguing that the Complaint offered no allegations against Bednowsky and that the claims surviving summary judgment are only against Defendants Murphy, Geslak, Lehman, and Reynolds. (ECF No. 135 at 2.) On March 17, 2016, Judge Shields ordered Mr. Hill to “indicat[e] whether or not [he] agrees with Defendants’ characterizations as to the [D]efendants remaining in this lawsuit.” (ECF No. 138 at 2.) In response, Mr. Hill informed Judge Shields that he did not receive Defendants’ March 3, 2016 letter. (ECF No. 141 at 1) Mr. Hill also asserted that Bednowsky and Murphy, who were respectively the Warden and Deputy Warden of SCCF, “formulated” the rules that governed the conditions of his administrative segregation. (Id. at 2–3.) Judge Shields mailed Defendants’ letter (ECF No. 135) and other later filed documents to Mr. Hill on April 8, 2025, and instructed Mr. Hill to “provide further response, including a request for a telephone conference” by May 9, 2016. (Elec. Order Apr. 8, 2016.) On May 9, 2016, Mr. Hill filed a motion requesting additional discovery and a telephone conference, a letter requesting that the Court mail him certain docket entries after being filed, and a motion for reconsideration of the Court's October 5, 2015 denial of his motion for reconsideration of Judge Hurley's October 30, 2009 Order granting Defendants summary judgment on the Non-Administrative Segregation Claims. ECF Nos. 143–145. However, Mr. Hill did not respond in any of those filings to Judge Shields's Order instructing him to indicate whether he “agree[d] with Defendants’ characterizations as to the defendants remaining in this lawsuit.” (ECF No. 138 at 2; see also ECF Nos. 143–145.) Nor did Mr. Hill comply with this instruction in any subsequent filing, based on the Court's close review of the docket. (See ECF Nos. 145–271.) Indeed, this case proceeded to a trial before Judge Seybert on January 13, 2025 without Bednowsky or his estate as a defendant. (ECF No. 259 at 1; see also Jan. 13, 2025 Trial Tr. 12:2–16.) *16 Mr. Hill filed the instant motion for reconsideration on June 2, 2025—more than one year after Judge Seybert's February 21, 2024 Order terminating Bednowsky from this action. Accordingly, Mr. Hill's motion for reconsideration is untimely to the extent that Mr. Hill seeks reconsideration of the termination based on any of the Rule 60(b)(1)-(3) factors—“(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b); [or] (3) fraud ..., misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(1)–(3). Moreover, even if the motion for reconsideration is timely, Mr. Hill has failed to make any argument or identify any evidence to support application of any of the Rule 60(b) factors, much less shown that he has met the “strict” standard for granting a motion for reconsideration. Commerzbank AG., 100 F.4th at 377. Accordingly, Mr. Hill's motion for reconsideration of Judge Seybert's Order terminating Bednowsky from this action is denied. Even if the Court were to find that reconsideration is warranted—and it does not—the substitution of Bednowsky's estate for Bednowsky would be denied as untimely under Rule 25(a). Defendants informed the Court and Mr. Hill that Bednowsky was deceased as early as February 11, 2016 —more than nine years ago—when Defendants’ counsel served “a statement noting [his] death.” Fed. R. Civ. P. 25(a)(1); ECF No. 129; see also Jones Inlet Marina, Inc. v. Inglima, 204 F.R.D. 238, 240 (E.D.N.Y. 2001) (finding a letter noting client's death, served upon all parties, was a proper suggestion of death). The period for any party to file a motion to substitute Bednowsky for his estate therefore lapsed 90 days later, on May 11, 2016. See Fed. R. Civ. P. Rule 25(a)(1) (“If the motion [to substitute a party] is not made within 90 days after service of a statement noting Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 88 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 14 the death, the action by or against the decedent must be dismissed.” (emphasis added)). Furthermore, as early as May 19, 2016, Mr. Hill acknowledged on the record that Bednowsky is deceased. (See ECF No. 143 at 3 & 3 n.1.) Despite that acknowledgement, Mr. Hill has not, at any time, sought to substitute Bednowsky's estate for Bednowsky. Accordingly, even if this Court were to reconsider Judge Seybert's termination of Bednowsky as a defendant in this action, Mr. Hill is time barred from seeking the substitution of Bednowsky's estate for Bednowsky. Accordingly, Mr. Hill's motion for reconsideration of the order terminating Bednowsky as a defendant in this action and motion to substitute Bednowsky's estate for Bednowsky are both denied. IV. Mr. Hill's Third Request Regarding the Conditions of Confinement and His Experiences in Administration Segregation Mr. Hill requests that the jury decide what the conditions of confinement were during his administrative segregation in the SCCF. (Mot. at 2.) Specifically, Mr. Hill seeks to offer evidence at trial that the following were “all part of the conditions of confinement” he experienced while detained in administrative segregation at the SCCF: “beatings, assaults, handcuffs, shackles,” a waist chain, and “forcible medication while handcuffed and shackled by six corrections officers.” (Id.) During the January 6, 2025 pre-trial conference, Judge Seybert stated that Mr. Hill was permitted to testify about being “shackled every time [he] left the cell and [that] other inmates were not,” about being forcibly administered medication, about “the size of the officers’ identification badges,” and “as to how they attacked [him] back in March of 2002.” (Jan. 6, 2025 Hr'g 28:14–18; 29:1–3.) 8 During trial, defense counsel objected to Mr. Hill's questioning of Defendant Lehman about Mr. Hill's allegations of forcible medication on April 3, 2002, arguing that none of the incident reports that Mr. Hill sought to introduce relating to this incident named Defendant Lehman. After hearing from the parties, Judge Seybert ruled that Mr. Hill was required to lay a foundation for questioning witnesses about the alleged forcible injection of Haldol and other conditions of confinement. (See Jan. 13, 2025 Trial Tr. 138:17–20 (“You have to show a connection between the defendants who are here now and the conditions, for example, the injection of Haldol and other issues.”).) *17 In light of the Court's ruling in this Opinion and Order that Mr. Hill may amend his Second Proposed Pre-Trial Order to include the three specific documentary exhibits that he wishes to offer into evidence at trial, the Court reserves decision on the question of whether beatings, assaults, handcuffs, shackles, a waist chain, and “forcible medication while handcuffed and shackled by six corrections officers” were part of the conditions of confinement experienced by Mr. Hill while detained pre-trial at the SCCF. (Mot. at 2.) Mr. Hill has been ordered to bring copies of the specific exhibits at issue—(1) a select number of pages from the SCCF April 3, 2002 incident reports; (2) one page of the SCCF's inmate handbook, which describes the incidents that are subject to SCCF's grievance procedures; and (3) one page of Mr. Hill's medical chart from the SCCF—to the July 8, 2025 pre-trial conference with the Court.(Min. Entry, May 29, 2025.) Defendants are aware that Mr. Hill seeks to elicit testimony from witnesses concerning his alleged experiences of beatings, assaults, handcuffs, shackles, a waist chain, and forcible medication. By July 8, 2025, Defendants will also be on notice of the specific documentary exhibits that Mr. Hill seeks to offer into evidence. Accordingly, the parties shall address at the July 8, 2025 pre-trial conference an expedited scheduling for briefing any motions in limine concerning Mr. Hill's proposed exhibits and the scope of witness testimony about the alleged conditions of confinement in the SCCF, including whether testimony about the allegations of forcible medication are admissible under Rules 401 and 403 of the Federal Rules of Evidence. CONCLUSION For the reasons stated above, Mr. Hill's Motion is granted in part, denied in part, and reserved in part as follows: Mr. Hill's motion for reconsideration Judge Hurley's Order granting summary judgment on the Non-Administrative Segregation Claims is denied. Mr. Hill's motion to amend his Second Proposed Pre-Trial Order is granted to the extent he seeks to add the three documentary exhibits he disclosed during the May 29, 2025 pre-trial conference, but denied to the extent he seeks to add the proposed audio and physical exhibits. The parties are required to meet and confer about Mr. Hill's ability to show the jury a photograph of handcuffs, shackles, and a waist chain of the type used to restrain Mr. Hill when he was detained pre- Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 89 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 15 trial in Administrative Segregation in the SCCF. The Court reserves judgment on the admissibility of Mr. Hill's proposed documentary exhibits. Mr. Hill's motion for reconsideration of Judge Seybert's December 11, 2023 Order denying his Motion to Amend the Complaint to include Suffolk County as a defendant is denied. Mr. Hill's motion for reconsideration of Judge Seybert's February 21, 2024 Order terminating Bednowsky as a defendant is denied. All Citations Slip Copy, 2025 WL 1871142 Footnotes 1 On February 21, 2024, Judge Joanna Seybert, to whom this action was previously assigned, terminated “John Doe 1 through 6 (S.E.R.T. of 4/3/02), Jonesy (Mr., Correction Officer), Kearsey (Sgt.), Sanicruz (Mr., Correction Officer), Singer (Lieutenant), Al Tisch (Sheriff), Walsh (Sgt.), West Bagnowski (Warden), and John Doe (Doctor)” from this action. (Elec. Order, Feb. 21, 2024.) 2 Mr. Hill filed three motions for reconsideration of Judge Hurley's October 30, 2009 Order granting summary judgment to Defendants on the Non-Administrative Segregation Claims. (ECF Nos. 113, 145, 161.) In an October 5, 2015 Order, Judge Hurley denied Mr. Hill's first motion for reconsideration (ECF No. 113) because Mr. Hill failed to “point to any controlling decisions or factual data that the court overlooked.” Hill, 2015 WL 5821435, *6. Judge Hurley ruled on the second and third motions for reconsideration in a November 29, 2016 Order. Hill v. Tisch, No. 02-cv-3901, 2016 WL 6991171 (E.D.N.Y. Nov. 29, 2016). Judge Hurley granted reconsideration solely to address three new cases that Mr. Hill raised in the motions, but nevertheless concluded that none of the cases warranted “reinstatement of the dismissed claims.” Id. at *1–2, 6–7. The November 29, 2016 Order thus affirmed the October 30, 2009 Order's grant of summary judgment to Defendants on the Non-Administrative Segregation Claims. 3 Excerpts from the parties’ submissions are reproduced here exactly as they appear in the original. Unless otherwise noted, errors in spelling, punctuation or grammar will not be corrected or highlighted. 4 Unless otherwise indicated, case quotations omit all internal quotation marks, brackets alterations, and citations. 5 At the time Mr. Hill filed his Motion, the Supreme Court had heard argument but had not yet decided Perttu. Following the issuance of the decision on June 18, 2025, this Court ordered the parties to provide supplemental briefing concerning whether Perttu supports Mr. Hill's motion for reconsideration of the October 30, 2009 Order granting Defendants summary judgment on the Non-Administrative Segregation Claims. (Elec. Order, June 26, 2025.) 6 At the May 29, 2025 pre-trial conference, Mr. Hill acknowledged that coming to the Alfonse D'Amato U.S. Courthouse with handcuffs, shackles, and a waist chain may actually violate courthouse security protocols. 7 Even if Mr. Hill had raised a meritorious basis for reconsideration of the denial of his Motion to Amend the Complaint to add Suffolk County as a defendant—which he has not—the Complaint fails to state a claim that any Suffolk County policy, practice, or custom caused Mr. Hill's injuries as alleged in either the Administrative Segregation Claims or the dismissed Non-Administrative Segregation Claims. There are no factual allegations in the Complaint that even liberally construed support the claim that any Suffolk County policies, practices, and customs. caused any of Mr. Hill's alleged injuries. (See generally Compl.) Accordingly, Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 90 of 140
Hill v. Tisch, Slip Copy (2025) WESTLAW © 2026 Thomson Reuters. No claim to original U.S. Government Works. 16 permitting Mr. Hill to amend the Complaint at this late stage to add Suffolk County as a defendant fails to satisfy the requirements of Rule 15(a)(2), which requires courts to “freely give leave [to amend a pleading] when justice so requires,” but nevertheless permits denial of any amendment that would be futile. See Scalia v. Sarene Servs., Inc., 740 F. Supp. 3d 251, 275 (E.D.N.Y. 2024) (“Unless there is a showing of bad faith, undue delay, futility or undue prejudice to the non-moving parties, the district court should grant leave to amend” under Rule 15(a)(2)); see also Roe v. City of Waterbury, 542 F.3d 31, 38, 41–42, (2d Cir. 2008) (affirming district court's finding that liability cannot be imposed on the defendant municipality for the tortious conduct of its mayor that did not constitute an official policy of the municipality). 8 Judge Seybert also ruled that Mr. Hill was prohibited from testifying about administrative exhaustion or whether his complaints were reviewed because these were issues already decided in Judge Hurley's October 30, 2009 and October 5, 2015 Orders. (Id. 28:18–25) End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works. Case 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 91 of 140
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 92 of 140
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 93 of 140
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 94 of 140
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 95 of 140
Jackson v. Jackson, Not Reported in Fed. Supp. (2021) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 96 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 97 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 States 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 States 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 98 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 99 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 100 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 101 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 102 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 103 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 104 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 105 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 106 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 107 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 108 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 109 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 110 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 111 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 112 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 113 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 114 of 140
Logan v. Graham, Not Reported in Fed. Supp. (2019) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 115 of 140
McGee v. McGready, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 116 of 140
McGee v. McGready, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 117 of 140
McGee v. McGready, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 118 of 140
McGee v. McGready, Not Reported in Fed. Supp. (2018) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 119 of 140
Mena v. City of New York, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 120 of 140
Mena v. City of New York, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 121 of 140
Mena v. City of New York, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 122 of 140
Mena v. City of New York, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 123 of 140
Mena v. City of New York, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 124 of 140
Ruiz v. Link, Not Reported in Fed. Supp. (2022) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 125 of 140
Ruiz v. Link, Not Reported in Fed. Supp. (2022) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 126 of 140
Ruiz v. Link, Not Reported in Fed. Supp. (2022) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 127 of 140
Ruiz v. Link, Not Reported in Fed. Supp. (2022) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 128 of 140
Ruiz v. Link, Not Reported in Fed. Supp. (2022) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 129 of 140
Ruiz v. Link, Not Reported in Fed. Supp. (2022) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 130 of 140
Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 131 of 140
Rusyniak v. Gensini, Not Reported in F.Supp.2d (2009) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 132 of 140
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 133 of 140
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 134 of 140
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 135 of 140
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 136 of 140
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 137 of 140
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 138 of 140
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 139 of 140
Toliver v. Stefinik, Not Reported in Fed. Supp. (2016) WESTLAW © 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 9:25-cv-00597-AMN-ML Document 24 Filed 05/21/26 Page 140 of 140
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