Henderson v. Jones

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Michael J. Henderson,
Plaintiff,
v. 9:22-CV-242
(AMN/MJK)
Laura Jones,
Defendant.
_____________________________________________________________________
Eric M. O’Bryan, Esq., for Plaintiff
Alexandra L. Galus, Esq., Asst. Attorney General, for Defendant
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Anne M. Nardacci, U.S. District Court Judge:
REPORT-RECOMMENDATION
United States District Court Judge Anne M. Nardacci ordered an
exhaustion hearing on the issue of whether Henderson properly
exhausted his retaliation claim against Jones. (Dkt. 75). On October 20,
2025, this Court held a hearing on the issue and ordered supplemental
briefing. (Dkt. 110). Jones submitted her supplemental brief and
Henderson responded. (Dkts. 111, 115). For the following reasons, this
Court recommends denying Jones summary judgment on the
exhaustion issue.
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 1 of 32

2
I. BACKGROUND
A. The Documentary Evidence
On June 7, 2020, Jones issued Henderson a misbehavior report
alleging that she saw him pass an unidentified object to another
incarcerated individual.1 (Def. SOMF, Dkt. 59-1, pg. 5, at ¶40).2 That
same day, Henderson grieved the misbehavior report, arguing that it
was false and filed in retaliation. (Pl. Exh. 1, at pg. 1). In his grievance,
Henderson noted that “Ms. Jones falsified a misbehavior report against
me saying I ‘passed something’ when I was sleeping all morning.” (Id.).
On June 10, 2020, a hearing officer found Henderson guilty of the
behavior reported in misbehavior report. (Henderson SJ Mot. Exh., Dkt.
67-2, at pg. 10). That same day, Henderson appealed the Tier II hearing
outcome to the Superintendent. (Id.). In the appeal, Henderson argued
“the misbehavior report was written in retaliation for my grievances . . .
in violation of . . . the First Amendment of the United States
Constitution[.]” (Id. at pg. 8). Two days after Henderson filed his
1 At the relevant time period, Henderson was incarcerated at Great Meadows
Correctional Facility. See (Amended Complaint, Dkt. 18-1).
2 All page citations refer to the CM/ECF pagination.
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 2 of 32

3
appeal, the Superintendent received it and referred it to a captain. (Id.
at pg. 10).
On June 18, 2020, Department of Corrections and Community
Supervision’s (“DOCCS”) staff recorded grievance 363-20 in their
system, titled it “Tier II,” and classified the grievance with class code
27. (Def. Exh. 5, at pg. 2).
On June 23, 2020, Acting Captain R. Vladyka affirmed
Henderson’s unfavorable Tier II hearing outcome. (Henderson SJ Mot.
Exh., Dkt. 67-2, at pg. 11).
Five days later—having never heard about his grievance—
Henderson wrote a letter to the Incarcerated Grievance Resolution
Committee (“I.G.R.C.”). (Def. Exh. 9). Specifically, Henderson wrote: “I
filed a grievance for a falsified misbehavior report by Officer Jones . . .
It has been more than 16 calendar days, and I have not received a
grievance number[,] hearing[,] or decision. For this reason[,] I wish to
appeal to the superintendent.” (Id.). The very next day, I.G.R.C. denied
the claim, and the superintendent’s office closed the case. See (Def. Exh.
5, at pg. 2; Def. Exh. 6).
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 3 of 32

4
B. Procedural History
Henderson commenced this action seeking remedies under 42
U.S.C. §1983 by filing a Complaint. (Dkt. 1). In his Complaint,
Henderson, among other things, alleged that “Jones . . . retaliated
against Plaintiff for his grievances by falsifying misbehavior reports
against him in violation of the First and Fourteenth Amendments[.]”
(Complaint, Dkt. 1, at pg. 9). In accordance with 28 U.S.C.
§ 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), Senior United States District
Judge Lawrence E. Kahn reviewed that Complaint. (Dkt. 4). Later,
Henderson filed an Amended Complaint (Dkt. 18-1). Judge Kahn
reviewed the Amended Complaint, determined that the Amended
Complaint was the operative pleading, and held that the following
claims survived:
1. Henderson’s First Amendment retaliation claims against
Defendants McLenithan, Guyette, Popp, Hamel, Fraser, Reynolds,
and Jones;
2. Henderson’s Fourteenth Amendment substantive due process
claims against Defendants McLenithan, Guyette, Popp, Hamel,
Fraser, Reynolds, Jones, and Scarlotta;
3. Henderson’s Fourteenth Amendment procedural due process claim
against Defendant Reynolds;
4. Henderson’s Eighth Amendment failure-to-protect and excessive
force claims against Defendant Popp;
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 4 of 32

5
5. Henderson’s Section 1983 conspiracy claims against Defendants
Guyette, Popp, Hamel, Fraser, and Reynolds; and
6. Henderson’s intentional infliction of emotional distress claims
against Defendants McLenithan, Guyette, Popp, Hamel, Fraser,
and Jones.
(Dkt. 19, pgs. 4-5).
After the parties completed discovery, Defendants moved for
summary judgment. (Dkt. 59). Among other things, Defendants argued
that Henderson failed to exhaust the administrative remedies available
to him. (Dkt. 59-2). Henderson responded and Defendants replied.
(Dkts. 67, 69). This Court issued a Report and Recommendation on
Defendant’s summary judgment motion to Judge Nardacci. (Dkt. 75). In
its report, the Court recommended Judge Nardacci order an exhaustion
hearing addressing whether Henderson exhausted his retaliation claim
against Jones, and grant Defendants summary judgment as to
Henderson’s claims against Guyette, McLenithan, Popp, Fraser,
Scarlotta, and Hamel. (Dkt. 75, at pg. 69); see also (Dkt. 77, at pg. 3,
n.3). Judge Nardacci adopted the recommendation, ordered an
exhaustion hearing, and referred that hearing to this Court. (Dkt. 77).
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 5 of 32

6
C. The Exhaustion Hearing
On October 20, 2025, this Court held a hearing addressing
whether Henderson exhausted his First Amendment retaliation claim
against Jones. (Hearing Tr., Dkt. 111). At the hearing, Alexandria
Cutler, Great Meadow’s former Inmate Grievance Program Supervisor,
Rachel Seguin, DOCCS’s Director of the Incarcerated Grievance
Program, and Henderson testified (Hearing Tr., Dkt. 111, pgs. 7, 8, at
lns. 12-19); (Id. at pgs. 29, 30, at lns. 11-14); (Id. at pg. 68).
Among other things, Cutler testified that DOCCS categorizes
grievances. (Hearing Tr., Dkt. 111, pg. 11, at lns. 9-10). DOCCS staffers
“read the grievance and then categorize it accordingly.” (Id., at lns. 12-
14). If a DOCCS prison receives a “grievance regarding staff retaliation”
it would be categorized as “49, which is staff misconduct.” (Id., at lns.
18-20. Likewise, if a DOCCS staffer receives a grievance for a false
misbehavior report, it would be categorized as “49, which is staff
misconduct.” (Id., at lns. 15-17). If a grievance is categorized as a Tier
II, it would be assigned a classification code number 27. (Id., pg. 14, at
lns. 10-15). Classification code number 27 is assigned to grievances that
grieve Tier II misbehavior reports. (Id., pg. 28, at lns. 1-6). Tier
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 6 of 32

7
hearings can be appealed but they operate on “a separate mechanism
from the Grievance Office[.]” (Id., pg. 15, at lns. 7-9).
Next, Seguin testified that certain subject matter is excluded from
what is grievable. (Id., pg. 37-38, at lns. 22- 14). “Disciplinary
proceedings have their own appeal mechanism” so “at the conclusion of
the hearing,” incarcerated individuals “are given the decision and there
is a form that they’re given that advises them of their rights to appeal.”
(Id., pg. 38, at lns. 2-6). If the incarcerated individual is appealing “a
Tier II” hearing, the appeal “goes to the superintendent’s office, and it’s
usually a captain or a designee by the superintendent[’s office] who
would make the decision on that appeal.” (Id. at lns. 11-14).
Notably, Seguin’s testimony somewhat conflicted with Culter as to
the classification of false misbehavior reports. Compare (Id., pg. 11, at
lns. 15-17); with (Id., pg. 39, at lns. 6-17). When an incarcerated
individual makes a false misbehavior report grievance, “a member of
the I.G.R.C. or one of the incarcerated individuals or the grievance
supervisor would speak to the incarcerated individual who submitted
[the grievance] and let them know this is not a grievable issue; your
avenue of redress is to go through the disciplinary . . . appeal
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 7 of 32

8
mechanism.” (Id., pg. 39, at lns. 6-11) (emphasis added). “If the
incarcerated individual still wishes to pursue the complaint,” DOCCS
staff must “file it and give it a grievance number. However, it would be
heard by the I.G.R.C., who would most likely dismiss and close it”
because “it’s a non-grievable issue and they should have used a
disciplinary appeal process. (Id. at lns. 11-17) (emphasis added).
But if an incarcerated individual is alleging that the misbehavior
report was “issued in retaliation . . . they’re really complaining about a
retaliatory issue; they’re not complaining about the disciplinary hearing
process.” (Id., pg. 42, at lns. 11-14). So that “may be a grievable issue.
[DOCCS] is not able to dismiss and close the grievance in its entirety
because there are matters that would be considered grievable.” (Id. at
lns. 16-20). Defense Counsel then asked: “So I just want to be clear. The
false [misbehavior report] is not grievable, but the [misbehavior report]
that is issued as retaliation is grievable?” (Id., pg. 43, at lns. 1-3).
Seguin answered “Correct.” (Id. at ln. 4).
Seguin also testified that DOCCS’s grievance retention policy is
“the prior four calendar years and the current calendar year.” (Id., pg.
53, at lns. 22-25). “So 2024, 2023, 2022, and 2021 is what” DOCCS has
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 8 of 32

9
“now. The 2020[] [grievances] have already been disposed of, or they
would have been disposed of in January of” 2025. (Id., pg. 54, at lns. 11-
14).
On recross-examination, Plaintiff’s Counsel asked Seguin whether
Defense Exhibit 8 (“Def. Exh. 8”) satisfies the appeal to superintendent
requirement of DOCCS’s ordinary grievance policy. (Id., pg. 67, at lns.
18-23). Seguin answered “yes.” (Id. at lns. 24-25).
Finally, Henderson testified that he has a specific process he uses
when writing grievances. (Id., pg. 70, at lns. 6-15). Henderson’s process
includes writing “one standard complaint and [he] will keep the address
to where it’s going to blank, and [he will] handwrite it about four times
to make [himself] around . . . nine and 11 copies so that [he] can send it
. . . to everybody in the chain of command.” (Id. at lns. 8-15). Henderson
used the same process when creating his grievance against Jones. (Id.,
pg. 71, at lns. 14-21). Henderson sent copies of his grievance against
Jones to, among other places, the Office of Special Investigation. (Id.,
pg. 72, at lns. 16-24). That office received the grievance. (Id., pg. 73, at
lns. 21-24); (Pl. Exh. 1).
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 9 of 32

10
At the end of the hearing, the Court ordered briefing on the
destruction of DOCCS records and anything else the parties wished to
cover in the briefing. (Hearing Tr., pg. 89, at lns. 8-9).
II. LEGAL FRAMEWORK
“As an affirmative defense, . . . exhaustion is a claim upon which
the party asserting it typically bears the ultimate burden of proving its
essential elements by a preponderance of the evidence.” Bailey v.
Fortier, No. 09-CV-0742 (GLS/DEP), 2012 WL 6935254, at *5 (N.D.N.Y.
2012) (cleaned up). “The burden of showing something by a
preponderance of the evidence, the most common standard in the civil
law, simply requires the trier of fact to believe that the existence of a
fact is more probable than its nonexistence[.]”Concrete Pipe & Prods. of
California, Inc. v. Constr. Laborers Pension Tr. for S. California, 508
U.S. 602, 622 (1993) (cleaned up).
III. DISCUSSION
In Section III.A the Court recommends the District Court find
that Henderson exhausted the administrative remedies available to
him. Alternatively, in Section III.B, the Court recommends the District
Court excuse Henderson’s failure to exhaust because DOCCS’s
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 10 of 32

11
grievance process is so opaque that no reasonable incarcerated
individual would have been able to access it.
* * *
The Prison Litigation Reform Act (“PLRA”) governs federal civil
rights litigation by incarcerated individuals. Under the PLRA, “no
action shall be brought with respect to prison conditions under § 1983 of
this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a) (cleaned up). “The
PLRA’s exhaustion requirement applies to all inmate suits about prison
life, whether they involve general circumstances or particular episodes.”
Porter v. Nussle, 534 U.S. 516, 532 (2002) (cleaned up). “Exhaustion is
mandatory—unexhausted claims may not be pursued in federal court.”
Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (citations omitted).
To exhaust administrative remedies, incarcerated individuals must
complete all the administrative review procedures according to the rules
applicable to the institution in which they are confined. Jones v. Bock,
549 U.S. 199, 218 (2007). “Untimely or otherwise procedurally defective
attempts to secure administrative remedies do not satisfy the PLRA’s
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 11 of 32

12
exhaustion requirement.” Ruggiero v. County of Orange, 467 F.3d 170,
176 (2d Cir. 2006) (cleaned up).
The PLRA’s exhaustion requirement does not apply if the remedy
is not functionally available to the incarcerated individual. See Ross v.
Blake, 578 U.S. 632, 642 (2016). There are three “circumstances in
which an administrative remedy, although officially on the books, is not
capable of use to obtain relief.” Id. at 643.
First, “an administrative procedure is unavailable when (despite
what regulations or guidance materials may promise) it operates as a
simple dead end—with officers unable or consistently unwilling to
provide any relief to aggrieved inmates.” Id. (citation omitted).
Second, “an administrative scheme” is unavailable, when it is “so
opaque that it becomes, practically speaking, incapable of use.” Id. at
643-644. “When an administrative process is susceptible of multiple
reasonable interpretations” the incarcerated individual “should err on
the side of exhaustion.” Id. at 644. “But when a remedy is . . .
essentially ‘unknowable’ —so that no ordinary prisoner can make sense
of what it demands—then it is also unavailable.” Id. (citation omitted).
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 12 of 32

13
Third, an administrative procedure is unavailable when “prison
administrators thwart” incarcerated persons “from taking advantage of
a grievance process through machination, misrepresentation, or
intimidation.” Id.
A. Henderson complied with DOCCS grievance policy as to
Tier II hearings, which DOCCS labelled his grievance as.
The District Court should find that Henderson exhausted the
administrative remedies available to him. Incarcerated individuals
must exhaust their administrative remedies before bringing claims to
federal court unless the administrative procedures are functionally
unavailable. Here, DOCCS classified Henderson’s 363-20 grievance as a
grievance about his Tier II hearing, and Henderson completed the
grievance process for that grievance classification. As a result, this
Court recommends the District Court find that Henderson properly
exhausted the administrative remedies available to him.
The initial question is what grievance process applies. “To
properly exhaust administrative remedies[,] [incarcerated individuals]
must ‘complete the administrative review process in accordance with
the applicable procedural rules. ’”Jones, 549 U.S. at 218 (internal
citation omitted). This means that incarcerated persons must follow the
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 13 of 32

14
applicable grievance process for their grievance. See Ruggerio, 467 F.3d
at 176; cf. Woodford v. Ngo, 548 U.S. 81, 81, (2006) (holding that proper
exhaustion “means using all steps that the agency holds out,” and doing
so properly.”) (emphasis changed). For the Court to determine what
grievance process applies, it must look to DOCCS’s categorization of the
grievance and DOCCS’s procedure to remedy that grievance. See id.
Examining the record, the Court finds that Plaintiff’s Exhibit 1 is
the grievance that goes to this issue. In his Amended Complaint,
Henderson alleged that Jones retaliated against him for filing
grievances. (Amended Complaint, Dkt. 18-1, at pg. 9). Henderson’s
factual support for this allegation is that Jones wrote a falsified
misbehavior report which noted that Jones saw “Henderson . . . pass
something to an unidentified” incarcerated individual. (Id. at pg. 8); see
also (Complaint, Dkt. 1, at pg. 8). Supporting this is Jones’s own
Statement of Material Facts. In that document, Jones contends that
“On June 7, 2020, C.O. Laura Jones issued [Henderson] a Misbehavior
report because she observed [him] pass an unidentified object to
another incarcerated individual at approximately 11:45 A.M.” (Jones
SOMF, Dkt. 59-1, pg. 5, at ¶40). Nearly identical to this is Henderson’s
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 14 of 32

15
grievance. In that grievance, Henderson wrote on “June 7, 2020, at
Great Meadow Correctional Facility, . . . Ms. Jones falsified a
misbehavior report against me saying I ‘passed something’ when I was
sleeping all morning.” (Pl. Exh. 1 at pg. 1). A rational reading of the
record indicates that Plaintiff’s Exhibit 1 is grievance 363-20 because it
grieves the exact same issue. Compare (Pl. Exh. 1 at pg. 1) with
(Amended Complaint, Dkt. 18-1, at pg. 9); (Jones SOMF, Dkt. 59-1, pg.
5, at ¶40).
Although Jones disputes this, the District Court should draw an
inference that Plaintiff’s Exhibit 1 is grievance 363-20. “The obligation
to preserve evidence arises when the party has notice that the evidence
is relevant to litigation or when a party should have known that the
evidence may be relevant to future litigation.” Cayuga Nation by &
through Cayuga Nation Council v. Parker, No. 5:22-CV-00128
(BKS/TWD), 2025 WL 3101417, at *2 (N.D.N.Y. Nov. 6, 2025). “The
scope of the duty extends to any documents made by individuals likely
to have discoverable information that the disclosing party may use to
support its claims or defenses.” Id. (cleaned up). But DOCCS shirked
that duty. DOCCS—who has a duty to maintain grievances—failed to
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 15 of 32

16
preserve the underlying grievance—which is critical to the question of
exhaustion. Indeed, Defense Counsel requested the underlying
grievance from DOCCS when the litigation began. (Pl. Counsel
Affidavit, Dkt. 110-1, at ¶3). And that request was enough to put
DOCCS on notice to preserve grievance 363-20. See Cooper Foods Int’l,
LLC v. Yourd, No. 24-CV-1757, 2025 WL 2663977, at *3 (E.D.N.Y. Sept.
17, 2025) (“a party has a duty to ‘preserve what it knows, or reasonably
should know, is relevant in the action, is reasonably calculated to lead
to the discovery of admissible evidence,” or what “is reasonably likely to
be requested during discovery”). DOCCS had ample notice that the
underlying grievance was relevant to future litigation. See (Pl. Counsel
Affidavit, Dkt. 110-1, at ¶3) (asking DOCCS to send Henderson’s
relevant grievances on October 6, 2022). But neither Jones, DOCCS, nor
Defense Counsel can produce 363-20. In fact, it is likely that DOCCS
destroyed the grievance due to its retention policy. See (Hearing Tr.,
Dkt. 110, pg. 54, at lns. 11-14). DOCCS cannot abdicate its duty and
then cry foul.
Jones’s counterargument on this point is that Defense Counsel
asked for all the documents and grievance 363-20 was not sent to her, so
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 16 of 32

17
it does not exist. (Jones Exhaustion Br., Dkt. 111, at pg. 2-3). But this
argument ignores the three-part spoliation analysis.
When performing the spoliation analysis, Courts must evaluate
three elements. First, the Court must “decide if the rule applies at all –
that is, if a party failed to take reasonable steps to preserve [evidence]
“that should have been preserved in the anticipation or conduct of
litigation.” Cooper Foods Int’l, LLC., 2025 WL 2663977, at *3 (cleaned
up). “If so, then the second step is to decide if there has been prejudice
to another party from loss of the information, in which case the Court
may order measures no greater than necessary to cure the prejudice.”
Id. (cleaned up) “Lastly, the third step to consider – regardless of
prejudice to any other party – is whether the destroying party acted
with the intent to deprive another party of the information’s use in the
litigation.” Id. (cleaned up).
Jones loses under spoliation’s three step analysis. First, there is
no evidence that DOCCS took reasonable steps to preserve the
underlying grievance. Should the District Court disagree and determine
that Defense Counsel’s request to DOCCS is enough to satisfy this
element, Jones still loses at step two. Henderson’s prejudice is clear:
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 17 of 32

18
Without evidence of his grievance, Henderson cannot maintain this
suit. See Amador, 655 F.3d at 96 (noting that exhaustion is mandatory
for PLRA claims). And because Jones loses under the spoliation
analysis, the Court recommends the District Court infer that Plaintiff’s
Exhibit 1 is grievance 363-20.
Establishing that Plaintiff’s Exhibit 1 is grievance 363-20, the
Court finds that the applicable grievance process is DOCCS’s
disciplinary appeals process. To start, DOCCS categorized 363-20 with
“class code 27.” (Def. Exh. 5, at pg. 2). Grievances classified with code 27
relate to Tier II misbehavior reports. See (Hearing Tr., Dkt. 110, pgs.
27-28, at lns. 25-6); see also (Id., pg. 14, at lns. 6-17). So DOCCS treated
363-20 as a grievance about a Tier II hearing. And the proper grievance
process for those issues is the disciplinary appeals process. See (Hearing
Tr., Dkt. 110, pgs. 38-39) (identifying that “disciplinary proceedings
have their own appeal mechanism” so if an incarcerated person grieves
their Tier II misbehavior report DOCCS would close it because the
“avenue of redress is to go through the disciplinary . . . appeal
mechanism.) (emphasis added). Thus, the applicable grievance process
is DOCCS’s grievance process for appeals of Tier II hearings.
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 18 of 32

19
The Tier II hearings grievance process is a two-step process. Tier
hearing appeals have a “separate mechanism” of appeal than ordinary
grievances. (Hearing Tr., Dkt. 110, pg. 15, at lns. 5-9); see also (Id., pg.
38, at lns. 2-14). First, there must be a Tier hearing. See (Id., pg. 38, at
lns. 2-14). At the conclusion of a Tier II disciplinary hearing,
incarcerated individuals appeal their unfavorable outcomes to “the
superintendent’s office, and it’s usually a captain or a designee by the
superintendent who would make the decision on that appeal.” (Hearing
Tr., Dkt. 110, pg. 38, at lns. 11-14). The disciplinary appeal process ends
there. See (Id.).
That said, the District Court should find that Henderson accessed
DOCCS’s Tier II hearing appeals grievance policy. On June 10, 2020 a
hearing officer found Henderson guilty of the act described in the
misbehavior report. See (Henderson SJ Mot. Exh., Dkt. 67-2, at pg. 11).
That same day, Henderson appealed the Tier II hearing outcome to the
superintendent. (Id. at 10). In his appeal, Henderson argued “the
misbehavior report was written in retaliation for my grievance . . . in
violation of . . . the First Amendment of the United States
Constitution[.]” (Id. at 8). Two days after Henderson appealed the Tier
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 19 of 32

20
II hearing outcome, the superintendent’s office received Henderson’s
appeal and referred it to the Captain’s office. (Id. at 10). Acting Captain
R. Vladkya affirmed the unfavorable decision. (Id. at 11). To sum up,
Henderson received an unfavorable outcome at his Tier II disciplinary
hearing, and he appealed that unfavorable decision to the
superintendent’s office, which affirmed that unfavorable decision. (Id. at
8-10). That was all he needed to do to properly exhaust his claim. As a
result the District Court should find that Henderson properly
exhausted his claim against Jones.
Jones’s counterargument—while not explicitly stated—is that the
normal DOCCS grievance process applies. Not so. Jones does not get to
post hoc choose the rules that apply. DOCCS classified Henderson’s
grievance as an appeal of a Tier II hearing, which calls for a grievance
procedure that is different than the normal grievance procedure.
Unintentionally, Henderson complied with the grievance procedure
governing Tier II hearings. Now, Jones argues that Henderson did not
exhaust because he did not follow the normal grievance process.
DOCCS’s needed to make clear to Henderson which grievance process
applied to his claim. But the record is devoid of any evidence that they
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 20 of 32

21
did so. DOCCS cannot treat Henderson’s grievance one way for
discipline and another way for litigation.
Further, Jones does not get to rely on Henderson’s actions, which
seem to indicate that he believed that the normal grievance procedure
applied. The PLRA reads: “no action shall be brought with respect to
prison conditions under § 1983 of this title, or any other Federal law, by
a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a) (cleaned up). Read plainly, §1997e(a) does not consider
intent. If incarcerated persons do not exhaust, they cannot bring a
§1983 suit about prison life. Cf. Jones, 549 U.S. at 218 (“to properly
exhaust administrative remedies prisoners must ‘complete the
administrative review process in accordance with the applicable
procedural rules’”). In consequence, the opposite must be true: If an
incarcerated individual unintentionally exhausts their claim, the claim
is exhausted. Intent does not matter. Here, Henderson—
unintentionally—complied with the grievance process for Tier II
hearings. That was enough to consider his claim properly exhausted.
* * *
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 21 of 32

22
To end, the Court recommends the District Court find Henderson’s
First Amendment retaliation claim exhausted. Recapping the
discussion, Woodford and its progeny mandate proper exhaustion.
Proper exhaustion is determined by the prison’s grievance process.
DOCCS categorized grievance 363-20 as a complaint about a Tier II
hearing. Therefore, DOCCS’s grievance process for Tier II hearings
applies. Henderson complied with that process. As a result, Henderson
grieved his claim under DOCCS’s strictures, and the District Court
should find that he properly exhausted his claim.
B. DOCCS’s grievance policy is so opaque that it was
functionally unavailable to Henderson.
If the District Court disagrees with the above analysis and applies
DOCCS’s general grievance framework, it should excuse Henderson’s
failure to exhaust. A grievance policy is functionally unavailable to
incarcerated persons if the process is “so opaque” that “no ordinary
prisoner can make sense of what it demands.” Ross, 578 U.S. at 643-44.
Here, DOCCS has three separate classifications, that lead to two
separate grievance processes. So DOCCS’s classification determines the
applicable grievance process. But Jones does not establish that
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 22 of 32

23
Henderson knew what grievance process applied to grievance 363-20.
As a result, the Court should excuse Henderson’s failure to exhaust.
DOCCS’s normal grievance procedure follows a three-step
framework. The first step requires an incarcerated individual to file a
complaint with the facility’s incarcerated grievance program clerk
within 21 days of the alleged event. 7 N.Y.C.R.R § 701.5(a). The I.G.R.C.
reviews the complaint, investigates the allegations, and then issues a
written determination. 7 N.Y.C.R.R § 701.5(b)(1). At the second step of
the grievance process, the incarcerated person may appeal I.G.R.C.’s
determination to the facility’s superintendent. 7 N.Y.C.R.R § 701.5(c).
On appeal, the superintendent reviews I.G.R.C.’s determination and
issues their own decision. Id. At the third step, an incarcerated
individual may appeal the superintendent’s decision to the Central
Office Review Committee (C.O.R.C.) for a final administrative
determination. 7 N.Y.C.R.R § 701.5(d).
Applying this framework, Henderson accessed the first two steps
of DOCCS’s grievance procedure. Henderson wrote a grievance to the
I.G.R.C., accessing the first level of DOCCS’s grievance policy. See (Pl.
Exh. 1); see also 7 N.Y.C.R.R § 701.5(a). Henderson also signed a
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 23 of 32

24
document that was provided to him by DOCCS appealing the I.G.R.C.
decision to the superintendent. See (Def. Exh. 6, Dkt. 67-2, at pg. 33);
see also 7 N.Y.C.R.R § 701.5(c). If that was not enough, Henderson
wrote a letter to the I.G.R.C. requesting a decision or permission to file
a grievance with the superintendent. See (Def. Exh. 6); see also (Hearing
Tr., pg. 67, at lns. 18-25). As a result, Henderson accessed the first two
steps of DOCCS’s grievance policy.
Now, the question is whether Henderson accessed the third step of
DOCCS’s grievance policy. He did not. Henderson has a lengthy history
of appealing decisions to C.O.R.C. See (Def. Exh. 4) But there is no
evidence that Henderson appealed grievance 363-20 to C.O.R.C. See
(Def. Exh. 4). Supporting that point, there is no evidence C.O.R.C.
cataloged or resolved grievance 363-20. See (Def. Exh. 5, at pg. 2). That
lack of evidence supports Jones’s argument that “no grievance for a
retaliatory misbehavior report was grieved up to” C.O.R.C. (Jones
Exhaustion Br., Dkt. 111, at pg. 5). So the Court finds that Henderson
did not access the third step of DOCCS’s grievance policy.
In opposition, Henderson argues that no ordinary prisoner could
navigate the grievance procedure. See (Henderson Exhaustion Br., Dkt.
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 24 of 32

25
115, at pgs. 10-11). The Court agrees. DOCCS has three separate
classifications, leading to two possible grievance policies, and
Henderson’s grievance could have taken either route.
First, as a reminder, is the tier hearing appeals process. Tier
hearing appeals have a “separate mechanism” of appeal than ordinary
grievances. (Hearing Tr., Dkt. 110, pg. 15, at lns. 5-9); see also (Id., pg.
38, at lns. 2-14). At the conclusion of a Tier II disciplinary hearing,
incarcerated individuals appeal their unfavorable outcomes to “the
superintendent’s office, and it’s usually a captain or a designee by the
superintendent who would make the decision on that appeal.” (Hearing
Tr., Dkt. 110, pg. 38, at lns. 11-14). The disciplinary appeal process ends
there. (Id.).
Second, is the false misbehavior reports grievance process. The
grievance process for incarcerated individuals alleging a false
misbehavior report is also different than the ordinary grievance process.
(Id., pg. 43, at lns. 1-3). If the incarcerated individual files a false-
misbehavior-report grievance while maintaining their innocence, the
I.G.R.C. will hear the Complaint, dismiss it, and close it, because “it’s a
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 25 of 32

26
non-grievable issue and [the incarcerated individual] should have used
a disciplinary appeal process.” (Id., pg. 39, at lns. 14-17).
Third, is the exception to the bar on the grievances for a false
misbehavior report. If an incarcerated individual is grieving a false
misbehavior report filed in retaliation, then the false misbehavior
report becomes grieve-able. See (Id.). This is true because the
incarcerated individual is “complaining about a retaliatory issue;
they’re not complaining about the disciplinary hearing process.” (Id., pg.
42, at lns. 13-14). This type of grievance follows the normal grievance
process. (Id., pg. 11, at lns. 1-24).
Complicating the issue is DOCCS’s classification of Henderson’s
grievance. DOCCS classified Henderson’s grievance as a grievance
challenging the unfavorable outcome of a Tier II hearing. (Def. Exh. 5,
at pg. 2). On its own, this classification makes no sense. But context
provides clarity.
The timeline of events—when the hearing occurred, when the
grievance was filed, when the hearing was appealed—leads to an
inference that a DOCCS staffer labelled 363-20 as a Tier II grievance
(27) instead of staff misconduct grievance (49). On June 7, 2020, Jones
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 26 of 32

27
issued a misbehavior report alleging that she saw Henderson pass an
unidentified object to another incarcerated individual. (Def. SOMF, Dkt.
59-1, pg. 5, at ¶40). That same day, Henderson grieved the misbehavior
report arguing that it was false and filed in retaliation. (Pl. Exh. 1).
Three days later, Henderson was found guilty of the charge made in the
misbehavior report. (Henderson SJ Mot. Exh., Dkt. 67-2, at pg. 10).
That same day, Henderson appealed the Tier II hearing outcome to the
superintendent. (Id.). In the appeal, Henderson argued that Jones wrote
the misbehavior report in retaliation. (Id. at pg. 8). Two days after
Henderson filed his appeal, the superintendent received it and referred
it to a captain. (Id. at pg. 10). On June 18, 2020, some DOCCS staffer
read the grievance and classified it as a grievance about a Tier II
hearing outcome. See (Def. Exh. 5, at pg. 2); see also (Hearing Tr., Dkt.
111, pg. 11, at lns. 12-14). On June 23, 2020, Acting Captain R. Vladyka
affirmed the Tier II hearing outcome. (Henderson SJ Mot. Exh., Dkt.
67-2, at pg. 11). Five days after this, Henderson wrote a letter to
I.G.R.C., noting that he “filed a grievance for a falsified misbehavior
report by Officer Jones . . . it ha[d] been more than 16 calendar days,
and [he] ha[d] not received a grievance number hearing or decision. For
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 27 of 32

28
this reason[,] [he] wish[ed] to appeal to the superintendent.” (Def. Exh.
9) (cleaned up). The very next day, I.G.R.C. denied the claim, and the
superintendent’s office closed the case. See (Def. Exh. 5, at pg. 2; Def.
Exh. 6).
That context makes one fact crystal clear: neither party
understood what grievance process Henderson needed to access.
Someone read grievance 363-20—in which Henderson argued that he
was innocent, and the misbehavior report was filed in retaliation—and
decided it was a grievance about a Tier II hearing appeal. See (Hearing
Tr., Dkt. 111, pg. 11, at lns. 12-14).3 I.G.R.C. then treated 363-20 as a
complaint about a Tier II hearing. In other words, I.G.R.C. viewed
Henderson’s claim as needing to follow the disciplinary appeals process.
On the other hand, Henderson viewed his grievances as needing to
follow the normal grievance process. This confusion (which was shared
3 As noted above DOCCS treats false misbehavior reports maintaining innocence
and false misbehavior reports filed in retaliation differently. (Hearing Tr., Dkt. 110,
pg. 43, at lns. 1-4). This left some human reviewer to determine whether 363-20,
which alleges retaliation and maintains innocence, fell into the false misbehavior
report bucket(non-grievable) or misbehavior report filed in retaliation bucket
(grievable staff misconduct). Considering this, it becomes apparent how a grievance
could be misclassified. Compare (Id., pg. 11, at lns. 15-17) (Cutler testifying that
false misbehavior reports are characterized as staff misconduct); with (Id., pg. 39, at
lns. 6-17) (Seguin testifying that complaints about false misbehavior reports go
through the disciplinary appeals process).
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 28 of 32

29
by Jones’s witnesses) should be fatal to Jones’s exhaustion defense. See,
e.g., Stephanski v. Allen, No. 18-CV-0076 (BKS/CFH), 2020 WL 806331,
at *10 (N.D.N.Y. 2020) (cleaned up) (recommending summary judgment
be denied to DOCCS Defendants because the record showed that the
plaintiff was confused as to what was necessary to exhaust his claim).
DOCCS’s classification of 363-20 as a grievance about Henderson’s
Tier II hearing, and their failure to tell Henderson what grievance
process he needed to use makes DOCCS’s grievance scheme functionally
unavailable. One false misbehavior report in retaliation grievance can
be classified as a grievance about a Tier II hearing, a false misbehavior
report grievance, or retaliation grievance. If the grievance is classified
as a grievance about a Tier II hearing, then one set of rules apply. The
incarcerated individual must appeal the hearing’s unfavorable outcome
to the superintendent. (Hearing Tr., Dkt. 110, pg. 38, at lns. 11-14). If
the grievance is classified as a false misbehavior report grievance, then
the grievance will be closed because the grievance process is not the
right avenue. (Id., pg. 39, at lns. 6-11). If the grievance is classified as a
retaliation grievance, then another set of rules apply. The incarcerated
individual can grieve the issue under DOCCS’s normal process. (Id., pg.
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 29 of 32

30
11, at lns. 1-24).). Three separate classifications, leading to two separate
grievance procedures, for one grievance is confusing. This labyrinthine
of classifications and procedures are “so opaque and confusing that [it
is] practically speaking, incapable of use.” Williams v. Correction Officer
Priato, 829 F.3d 118, 126 (2d. Cir. 2016) (finding the incarcerated
plaintiff’s claim unexhausted because DOCCS’s policy was unclear).
To the extent Jones objects to this argument and contends that
Henderson needed to exhaust both avenues, the Court pre-emptively
rejects that counterargument. True, incarcerated individuals must “err
on the side of exhaustion” when “an administrative process is
susceptible of multiple reasonable interpretations.” Ross, 578 U.S. at
644. But that does not require an incarcerated individual to use all
possible grievance procedures. That would frustrate the purposes of
exhaustion. “Exhaustion of administrative remedies serves two main
purposes.” Woodford, 548 U.S. at 89. First, “exhaustion gives an agency
an opportunity to correct its own mistakes with respect to the programs
it administers before it is haled into federal court[.]” Id. (cleaned up).
Second “exhaustion promotes efficiency” because “claims generally can
be resolved much more quickly and economically” by an agency. Id.
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 30 of 32

31
(cleaned up). Requiring Henderson to exhaust both claims would give
the agency two opportunities to correct its own mistakes before being
haled into federal court. But there is no requirement that Henderson
give DOCCS two bites at the apples. Doing so actually lessens the
second purpose of exhaustion, efficiency. So the District Court should
not add a hurdle that the PLRA’s text and exhaustion’s purpose do not
support.
* * *
To conclude, the District Court should find Henderson’s failure to
exhaust excused if it disagrees with this Court’s first analysis. DOCCS
has three separate possible classifications, leading to two separate
grievance procedures. Without DOCCS telling Henderson how 363-20
was classified, he had no way to know how to properly exhaust his
claim. That is the definition of opaque. As a result, this Court
recommends the District Court find Henderson’s failure to exhaust
excused because the process was so opaque it was functionally
unavailable.
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 31 of 32

32
IV. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the District Court DENY Jones’s motion
for summary judgment (Dkt. 59) on the issue of exhaustion because
Henderson exhausted his PLRA claim against Jones; and it is
ORDERED that the Clerk provide Plaintiff with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
In accordance with 28 U.S.C. § 636(b)(1), 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 DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85
(2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989) (per curiam)); 28 U.S.C. § 636(b)(1) (Supp. 2013);
Fed. R. Civ. P. 72, 6(a).
Dated: January 12th, 2026
_____________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
Case 9:22-cv-00242-AMN-MJK Document 114 Filed 01/12/26 Page 32 of 32