Archer v. Fox et al

1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Mark Archer,
Plaintiff,
v. 	9:24-CV-2
(BKS/MJK)
Aidan Fox, et. al.,
Defendants.
_____________________________________________________________________
Mark Archer, Plaintiff, pro se
Robert C. Whitaker, Jr., Esq., Hancock Estabrook, LLP for Defendants
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Brenda K. Sannes, Chief U.S. District Court Judge:
REPORT-RECOMMENDATION
Chief United States District Court Judge Brenda K. Sannes
referred Defendants’ summary judgment motion to the Court for report
and recommendation.1 In this pro se civil rights action, Archer alleges
that Defendants violated his Eighth Amendment rights when they twice
pepper sprayed him and assaulted him. For the following reasons, this
Court recommends granting Defendants’ summary judgment motion.
1 The District Court has the authority to refer dispositive motions to this Court
under 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 1 of 22

2
I. 	BACKGROUND
Archer began this case by filing a Complaint and moving for leave
to proceed in forma pauperis. (Dkts. 1, 2). In his Complaint, Archer
alleged that Defendants Aidan Fox, Tyler Rubera, and Tymor Geelen
violated his Eighth Amendment rights when they pepper sprayed,
pushed, and assaulted him in his jail cell. (Amended Complaint, Dkt.
15, at pgs. 4-5). Later, Defendants answered the Complaint. (Dkt. 33).
The parties then began discovery.
During discovery, Defense Counsel deposed Archer. (Archer Depo.,
Dkt. 37-6). During the deposition, Archer testified that on the day of the
incident he was familiar with Delaware County Correctional Facility’s
grievance process. (Id., pg. 57, at lns. 2-6).2 Supporting this assertion
are the 10 grievances Archer has filed while at Delaware County
Correctional Facility, and the four grievances Archer filed between
November 10, 2023, and November 26, 2023—the month the assault
occurred. (Id., at pgs. 56, 61-66). Archer did not grieve the assault. (Id.,
pg. 72, at lns. 2-11). No Delaware County Correctional Facility staff
member told Archer that he should not file a grievance. (Id., pg. 73, at
2 All page references are to the Administrative Transcript (“T.”) and not the page
numbers assigned by the CM/ECF pagination system.
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 2 of 22

3
lns. 9-15). Likewise, no one prohibited Archer from filing a grievance.
(Id.).
Defendants now move for summary judgment. (Dkt. 37). Archer
did not respond.
II. 	STANDARD OF REVIEW
Summary Judgment
“Summary Judgment is appropriate only if the movant shows that
there is no genuine issue as to any material fact.” Tolan v. Cotton, 572
U.S. 650, 656-57 (2014) (cleaned up). When deciding if there is a
genuine issue of material fact, courts “must view the evidence in the
light most favorable to the” non-moving party. Id. at 656 (cleaned up).
Likewise, courts must “resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party opposing
summary judgment.” Kessler v. Westchester County Dep’t of Social
Services, 461 F.3d 199, 206 (2d Cir. 2006). “Where the record taken as a
whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“The moving party bears the initial burden of showing that there
is no genuine dispute as to a material fact.” CILP Assocs., L.P. v.
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 3 of 22

4
Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) “When
the moving party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec., 475 U.S. at 586. “The
nonmoving party may not rely on mere conclusory allegations nor
speculation but instead must offer some hard evidence showing that its
version of the events is not wholly fanciful.” D’Amico v. City of New
York, 132 F.3d 145,149 (2d Cir. 1998) (cleaned up).
“If the defendant in a run-of-the-mill civil case moves for summary
judgment,” judges “must ask” themselves “not whether” they “think the
evidence unmistakably favors one side or the other but whether a fair-
minded jury could return a verdict for the plaintiff on the evidence
presented. The mere existence of a scintilla of evidence in support of the
plaintiff’s position will be insufficient; there must be evidence on which
the jury could reasonably find for the plaintiff.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). “A court cannot credit a plaintiff’s
merely speculative or conclusory assertions.” DiStiso v. Cook, 691 F.3d
226, 230 (2d Cir. 2012).
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 4 of 22

5
III. GENERALLY APPLICABLE LAW
Section 1983 establishes a cause of action for “the deprivation of
any rights, privileges, or immunities secured by the Constitution and
laws of the United States.” German v. Fed. Home Loan Mortg. Corp.,
885 F. Supp. 537, 573 (S.D.N.Y. 1995) (cleaned up). “Section 1983 itself
creates no substantive rights, it only creates “a procedure for redress for
the deprivation of rights established elsewhere.” Sykes v. James, 13
F.3d 515, 519 (2d Cir. 1993) (citation omitted). “To establish a
defendant's individual liability in a suit brought under Section 1983, a
plaintiff must show “the defendant's personal involvement in the
alleged constitutional deprivation.” Grullon v. City of New Haven, 720
F.3d 133, 138 (2d Cir. 2013) (cleaned up).
IV. 	DISCUSSION
The District Court should grant Defendants’ summary
judgment because Archer admitted that he did not
exhaust his claim and there is no reason to excuse his
failure to exhaust.
The District Court should find that Archer did not exhaust 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
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 5 of 22

6
unavailable. Here, Archer admitted that he did not grieve the assault.
So this Court recommends that the District Court find that Archer did
not exhaust the administrative remedies available to him.
The Prison Litigation Reform Act (PLRA) governs federal civil
rights litigation by inmates. 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, an incarcerated individual 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); see also Dickinson v. York, 828 F. App’x 780,
782-784 (2d Cir. 2020) (summary order) (applying the PLRA to a pre-
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 6 of 22

7
trial detainee plaintiff). “Untimely or otherwise procedurally defective
attempts to secure administrative remedies do not satisfy the PLRA’s
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 . . .
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 7 of 22

8
essentially ‘unknowable’ —so that no ordinary prisoner can make sense
of what it demands—then it is also unavailable.” Id. (citation omitted).
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.
Delaware County Correctional Facility has a two-step grievance
process. At step one, incarcerated individuals, within five days of the
incident, must request a grievance form, fill out the form with a black
ink pen, and return the form to the grievance coordinator. (Grievance
Procedure, Dkt. 37-6, at pg. 52). “Within five business days of the
receipt of a grievance, the grievance coordinator [will] issue a written
determination.” (Id. at pg. 53). Incarcerated individuals may access step
two if the grievance coordinator issues an unfavorable determination.
See (Id.). At step two, incarcerated individuals may appeal the
grievance coordinator’s decision to the chief administrative officer or
their designee within two business days of the incarcerated individual’s
receipt of the grievance coordinator’s written determination (Id.). The
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 8 of 22

9
chief administrative officer or their designee will issue a decision on the
appeal within five days of their receipt of the appeal request. (Id.).
Archer did not access Delaware County Correctional Facility’s
grievance program. Archer, on his own, admits that he was aware of the
grievance program, but he did not grieve the assault because he feared
retaliation. (Archer Depo., Dkt. 37-6, pgs. 56-57, at lns. 15-5); (Archer
Depo., Dkt. 37-6, pg. 72, at lns. 2-9); (Archer Depo., Dkt. 37-6, pg. 73, at
lns. 6-15). Archer does not identify any specific incident or threat that
caused this fear. So that generalized fear—without any specific threat—
is not enough to obviate the PLRA’s exhaustion requirement. See, e.g.,
Thompson v. Kelly, No. 18-CV-1235 (LEK/DJS), 2019 WL 2374119, at
*4 (N.D.N.Y. 2019), (cleaned up) (finding “Plaintiff's fear of retaliation
is insufficient to excuse his failure to exhaust” where “Plaintiff has
merely stated a ‘generalized fear of retaliation,’ without allegations of
any specific threats or other actions that would prevent him from filing
a grievance”). In consequence, Archer did not exhaust his PLRA claim.
Adding to this, none of the Ross exceptions apply. Archer filed four
grievances during the month of the assault, and he filed three more
grievances after the incident. (Archer Depo., Dkt. 37-6, at pgs. 61-71). In
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 9 of 22

10
other words, the grievance process was available, and Archer knew how
to use it. Worse, Delaware County Correctional Facility staff seemed to
encourage the grievance process’ use. See e.g., (Id., pg. 73, at lns. 18-24)
(Sgt. Blanco told Archer that he “can file all the grievances [he] want[s]
on medical and the kitchen.”). Beyond that, there is nothing the Court
can analyze to determine whether the grievance process operated as a
dead-end. But the lack of record evidence does not change the
recommendation: The District Court should grant Defendants’
summary judgment because Archer admittedly failed to exhaust his
claim, and that failure should not be excused.3
V. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the District Court GRANT Defendants’
motion for summary judgment (Dkt. 37) because Archer did not exhaust
his PLRA claim; and it is further
ORDERED that the Clerk provide Archer with copies of the
unpublished decisions cited herein in accordance with Lebron v.
Sanders, 557 F.3d 76 (2d Cir. 2008) (per curiam).
3 The Court does not address Defendants second point because the evidence that
Archer did not exhaust is so compelling that there is no need reach the second issue.
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 10 of 22

11
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 28, 2026
_________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 11 of 22

Dickinson v. York, 828 Fed.Appx. 780 (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Knight v. New York State Department of Corrections, S.D.N.Y., March 30, 2022
828 Fed.Appx. 780
This case was not selected for publication in West's Federal Reporter.
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX
OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
United States Court of Appeals, Second Circuit.
Shannon C. DICKINSON, Plaintiff-Appellant,
v.
Nathan H. YORK, Warren County Sheriff, Wayne Farmer, Sergeant; Warren County Correctional Facility, Officer
Mason, Officer Green, Officer Reynolds, Officer Smith, Officer Pond, Officer Harpp, Officer Trottier, fka Officer
Trotier, Officer Slater, Officer Curtis, Officer Wittenburg, fka Officer Wittenburg, Officer Lemelin, fka Officer
Lemlon, Officer Sorensen, fka Officer Sorenson, Officer Mattison, Officer Allison, Officer Hill, Officer Vandenburg,
Officer Eldridge, Officer Hoerter, Sgt. Keays, Lt. Clifford, Lt. Maday, Warren County Defendants-Appellees,
Tourge, Grievance Coordinator, Warren County C.F., Defendants.
No. 18-2781
|
October 5, 2020
Synopsis
Background: Pretrial detainee, who used a wheelchair, filed claims against county correctional facility under the Americans
with Disabilities Act (ADA), the Rehabilitation Act, the New York Constitution, and § 1983, alleging correctional facility
denied detainee appropriate wheelchair-accessible transportation and an accommodation to the standard-issue uniform, which
was unsafe to use in a wheelchair. The United States District Court for the Northern District of New York, Lawrence E. Kahn,
Senior District Judge, 2018 WL 4188432, adopted the report and recommendation of David E. Peebles, Chief United States
Magistrate Judge, 2018 WL 4190142, and granted correctional facility summary judgment for failure to exhaust administrative
remedies. Detainee appealed.
Holdings: The Court of Appeals held that:
[1] detainee exhausted his administrative remedies with respect to his grievance alleging facility denied detainee appropriate
transportation, and
[2] detainee exhausted his administrative remedies related to his grievance claiming that standard uniform was inadequate.
Reversed and remanded.
Procedural Posture(s): On Appeal; Motion for Summary Judgment.
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 12 of 22

Dickinson v. York, 828 Fed.Appx. 780 (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
West Headnotes (2)
[1] Civil Rights Criminal law enforcement; prisons
Pretrial detainee exhausted his administrative remedies under the New York State Department of Corrections and
Community Supervision Inmate Grievance Procedure related to his grievance contending that county correctional
facility violated the ADA by taking detainee, who used a wheelchair, to court appearances and off-site medical visits
in a regular patrol car, rather than a wheelchair-accessible van, as required to bring action against correctional facility
in federal court under the Prison Litigation Reform Act (PLRA); detainee followed each step of the grievance process,
applicable administrative body failed to respond to detainee's final appeal within the time allocated under the relevant
New York regulation, and regulations did not provide any other avenue for relief. Civil Rights of Institutionalized
Persons Act § 7, 42 U.S.C.A. § 1997e(a); Americans with Disabilities Act of 1990 § 2, 42 U.S.C.A. § 12101 et seq.;
N.Y. Comp. Codes R. & Regs. tit. 9, §§ 7032.4, 7032.5.
12 Cases that cite this headnote
[2] Civil Rights Criminal law enforcement; prisons
Pretrial detainee exhausted his administrative remedies under the New York State Department of Corrections and
Community Supervision Inmate Grievance Procedure related to his grievance claiming that standard one-piece
jumpsuit uniform for inmates was inadequate due to detainee's use of a wheelchair on basis that detainee could not
wear uniform properly and that loose-hanging material would catch on detainee's wheelchair, as required to bring
action in federal court against county correctional facility under the Prison Litigation Reform Act (PLRA); detainee's
grievance was accepted and detainee was informed that correction administration was in the process of ordering
detainee a two-piece uniform, detainee still had not received uniform approximately one month later, and applicable
New York prison regulations failed to provide a remedy for implementation failures. Civil Rights of Institutionalized
Persons Act § 7, 42 U.S.C.A. § 1997e(a); N.Y. Comp. Codes R. & Regs. tit. 9, § 7032.5(a).
8 Cases that cite this headnote
*781 Appeal from a judgment of the United States District Court for the Northern District of New York (Lawrence E. Kahn,
Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the
district court is REVERSED and REMANDED for further proceedings.
Attorneys and Law Firms
FOR APPELLANT: OMAR ALI KHAN (Kelsey D. Russell, Steven W. Shuldman, on the brief), Wilmer Cutler Pickering Hale
and Dorr LLP, New York, NY.
FOR DEFENDANTS-APPELLEES: LORAINE CLARE JELINEK (Gregg Tyler Johnson, on the brief), Johnson & Laws,
LLC, Clifton Park, NY.
FOR AMICUS CURIAE THE LEGAL AID SOCIETY: Robert M. Quackenbush, The Legal Aid Society, New York, NY.
FOR AMICUS CURIAE PRISONERS’ LEGAL SERVICES OF NEW YORK: James M. Bogin, Prisoners’ Legal Services of
New York, Albany, NY.
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 13 of 22

Dickinson v. York, 828 Fed.Appx. 780 (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
PRESENT: DEBRA ANN LIVINGSTON, Chief Judge. RICHARD J. SULLIVAN, WILLIAM J. NARDINI, Circuit Judges.
SUMMARY ORDER
Plaintiff-Appellant Shannon Dickinson appeals from a decision of the United States District Court for the Northern District of
New York (Kahn, J.) granting summary judgment in favor of Defendants-Appellees on Dickinson's claims under the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; the New
York State Constitution; and 42 U.S.C. § 1983 to redress violations of his rights under the Eighth and Fourteenth Amendments.
Dickinson, a paraplegic who has been confined to a wheelchair since 1991, filed suit alleging that Defendants denied him (1)
appropriate wheelchair-accessible transportation and (2) an accommodation to the standard-issue uniform, which was unsafe
to use in a *782 wheelchair. On appeal, Dickinson argues that the district court erred in granting summary judgment on his
claims for failure to exhaust administrative remedies. We agree.
I. Standard of Review
We review the district court's grant of summary judgment de novo. Williams v. Corr. Officer Priatno, 829 F.3d 118, 121–22 (2d
Cir. 2016). 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). In granting summary judgment, the court is
“required to view the evidence in the light most favorable to the party opposing summary judgment [and] to draw all reasonable
inferences in favor of that party.” Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996).
II. Applicable Law
The Prison Litigation Reform Act (“PLRA”) requires an inmate to exhaust all “available” administrative remedies prior to
bringing an action in federal court. 42 U.S.C. § 1997e(a). An administrative procedure is “unavailable” when (1) “it operates as
a simple dead end – with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) the scheme
is “so opaque that it becomes, practically speaking, incapable of use,” meaning that “some mechanism exists to provide relief,
but no ordinary prisoner can discern or navigate it;” or (3) “when prison administrators thwart inmates from taking advantage
of a grievance process through machination, misrepresentation, or intimidation.” Ross v. Blake, ––– U.S. ––––, 136 S. Ct. 1850,
1859–60, 195 L.Ed.2d 117 (2016). “[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper
exhaustion.” Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
At the time of the events relevant to this appeal, Dickinson was a pretrial detainee housed in Warren County Correctional Facility
(“WCCF”). Title 9, Subtitle AA, Chapter I of the New York Codes, Rules and Regulations (“NYCRR”) outlines the “Minimum
Standards and Regulations for Management of County Jails and Penitentiaries,” including those that apply to a formal inmate
grievance procedure. See NYCRR tit. 9 § 7032.1–.12. Under those regulations, “the chief administrative officer of each local
correctional facility shall establish, implement and maintain a formal inmate grievance program,” id. § 7032.1, which “shall
include,” among other things, “a detailed description of grievance program operations including steps, timeliness, investigative
processes and available internal and external appeal procedures,” id. § 7032.3(b).
Title 9 of the NYCRR further provides that, under any facility program, an inmate must “file a grievance within five days of the
date of the act or occurrence giving rise to the grievance.” Id. § 7032.4(d). Within five business days of receipt, the “grievance
coordinator shall issue a written determination.” Id. § 7032.4(i). The inmate has two business days after receipt of the grievance
coordinator's determination to appeal to the chief administrative officer, id. § 7032.4(j), after which the chief administrative
officer has five business days to issue a determination, id. § 7032.4(k). For “any grievance denied by the facility administrator,”
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 14 of 22

Dickinson v. York, 828 Fed.Appx. 780 (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
the inmate has three business days to indicate to the grievance coordinator that he seeks to appeal to the State Commission
of Correction, and the grievance coordinator then has three business days to submit the appeal to the Commission's Citizens’
Policy and Complaint Review Council (“CPCRC”). Id. § 7032.5. Subject to certain exceptions not relevant to this appeal, the
CPCRC “shall issue a written determination *783 to the appeal within 45 business days of receipt.” Id. § 7032.5(d)(1). 1
III. Discussion
A. Dickinson Exhausted His Grievance Regarding His Entitlement to Wheelchair-Accessible Transportation
[1] Dickinson filed a grievance on November 12, 2015, contending that WCCF violated the ADA by taking him to court
appearances and off-site medical visits in a regular patrol car rather than a wheelchair-accessible van. The grievance coordinator
denied Dickinson's grievance on November 16. Dickinson appealed, and on November 17, the chief administrative officer
agreed with the grievance coordinator's decision to deny the grievance. Dickinson appealed to the CPCRC on November 18.
Dickinson filed suit on February 10, 2016 – 55 business days after he appealed to the CPCRC. 2 At the time, his appeal before
the CPCRC was still pending. The CPCRC denied his appeal on June 9, 2016.
In United States v. Hayes, No. 19-650, filed simultaneously with this summary order, we held that an inmate exhausts
administrative remedies under the New York State Department of Corrections and Community Supervision Inmate Grievance
Procedure where he follows each step of the process but the administrative body fails to respond to his final appeal within the
time allocated under the regulations. Just as with the state administrative scheme at issue in Hayes, Title 9 requires that the
CPCRC respond to an appeal within a limited time period. See NYCCR tit. 9 § 7032.5(d)(1) (“[T]he [CPCRC] shall issue a
written determination to the appeal within 45 business days of receipt.”). Because the CPCRC failed to do so here, and because
the regulations do not provide any other avenue for relief, we find that Dickinson has exhausted his administrative remedies. 3
B. Dickinson Exhausted Administrative Remedies with Respect to His Wheelchair-Safe Clothing Grievance
[2] On September 17, 2015, Dickinson submitted a grievance claiming that the standard one-piece jumpsuit uniform was
inadequate, since he could not wear it properly and the loose-hanging material would catch on his chair. Sergeant Spring
promptly accepted his grievance, and informed *784 Dickinson that the Correction Administration was in the process of
ordering him a two-piece uniform. Approximately one month later, having still not received his new uniform, Dickinson filed
another grievance to inquire about its status. After Sergeant Spring told Dickinson that WCCF had ordered the uniform and
that it would arrive soon, Dickinson voluntarily voided his second grievance. As an interim measure, Dickinson was given a
two-piece uniform from a neighboring facility. Ultimately, Dickinson waited for his own new uniform for four months, two of
which were after WCCF accepted his grievance.
“[W]here prison regulations fail to provide a remedy for implementation failures, prisoners who receive a favorable outcome
to their initial grievance that remains unimplemented have fully exhausted their available remedies.” Ruggiero v. County of
Orange, 467 F.3d 170, 176 (2d Cir. 2006) (citing Abney v. McGinnis, 380 F.3d 663, 669 (2d Cir. 2004)). Because the regulations
here do not provide a remedy for an inmate to appeal an implementation failure, we conclude that Dickinson exhausted his
administrative remedies. See NYCRR tit. 9 § 7032.5(a) (stating only that an inmate “may appeal any grievance denied by the
facility administrator, in whole or in part, to the [CPCRC]” (emphasis added)); see also Ruggiero, 467 F.3d at 176.
CONCLUSION
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 15 of 22

Dickinson v. York, 828 Fed.Appx. 780 (2020)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
Accordingly, for the reasons stated above, we REVERSE the grant of summary judgment in favor of Defendants-Appellees on
Dickinson's claims, and REMAND to the district court for further proceedings.
All Citations
828 Fed.Appx. 780
Footnotes
1 In a supplemental letter to the Court submitted after oral argument, Defendants argue – for the first time and without
explanation – that Dickinson failed to exhaust administrative remedies under Title 7 of the NYCRR. But Title 7
“constitutes the rules and regulations” for “State Department of Correctional Services,” NYCRR tit. 7 §§ 1.0(a), 1.5(a)
(emphasis added), not local facilities. The administrative bodies involved and the timelines for review differ between
Title 7 and Title 9, compare id. § 701.5 with NYCRR tit. 9 § 7032, thus suggesting that the two cannot both apply to a
given case. To the extent Defendants now argue that Title 7 applies, they have waived that argument. See McCarthy v.
S.E.C., 406 F.3d 179, 186 (2d Cir. 2005) (“We think it reasonable to hold appellate counsel to a standard that obliges a
lawyer to include his most cogent arguments in his opening brief, upon pain of otherwise finding them waived.”).
2 It is not clear from the record when the CPCRC received the appeal, which starts the 45-day deadline under the
regulations. The magistrate judge assumed that the CPCRC received Dickinson's appeal on November 23, the last of
the three business days to submit the appeal. Defendants do not contest this conclusion on appeal. Therefore, assuming
this to be true, the CPCRC's response was significantly after the 45-day deadline to respond.
3 While Title 9 provides only the “Minimum Standards and Regulations” that a county facility must implement in adopting
a formal grievance program, Defendants have failed to submit any evidence of the actual grievance program that WCCF
has implemented. See NYCRR tit. 9 § 7032.3; see also Hubbs v. Suffolk Cty. Sheriff's Dep't, 788 F.3d 54, 62 (2d Cir.
2015) (“The burden ... is on the defendant to establish at the outset that an administrative remedy was ‘available’ in the
sense that a grievance policy or procedure existed and covered the dispute at hand.”). The parties nonetheless appear to
have conceded that the minimum standards in Title 9 apply. Therefore, for the purposes of this appeal, we assume that the
grievance program in place at WCCF incorporates the procedures outlined in Title 9. And while it is possible that WCCF
may have additional procedural mechanisms relevant to this appeal, we conclude that Defendants have forfeited any
such argument. See Hemphill v. New York, 380 F.3d 680, 686, 688–89 (2d Cir. 2004) (non-exhaustion is an affirmative
defense that can be forfeited), overruled on other grounds by Ross, ––– U.S. ––––, 136 S. Ct. 1850, 195 L.Ed.2d 117.
End of Document © 2026 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 16 of 22

Thompson v. Kelly, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 2374119
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Jarrod Christopher THOMPSON, Plaintiff,
v.
Nurse KELLY, et al., Defendants.
Civ. No. 9:18-CV-1235 (LEK/DJS)
|
Signed 04/04/2019
Attorneys and Law Firms
JARROD CHRISTOPHER THOMPSON, Plaintiff, Pro Se, 17-A-3501, Hale Creek ASACTC, P.O. Box 950, Johnstown, NY
12095.
HON. LETITIA JAMES, Assistant Attorney General, OF COUNSEL: NICHOLAS LUKE ZAPP, ESQ., New York State
Attorney General, The Capitol, Albany, NY 12224, Attorney for Defendant Kelly.
REPORT-RECOMMENDATION AND ORDER
Daniel J. Stewart, U.S. Magistrate Judge
*1 Pro se Plaintiff Jarrod Christopher Thompson brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging that
Defendants were deliberately indifferent to his medical needs in violation of the Eighth Amendment. Dkt. No. 2, Compl. On
initial review of the Complaint pursuant to 28 U.S.C. §§ 1915(e) & 1915A, the District Court permitted Plaintiff's claims against
the individual Defendants to proceed, and dismissed Plaintiff's claim against DOCCS. Dkt. No. 10. Currently before the Court is
Defendant Kelly's Motion to Dismiss, filed pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds that (1) Plaintiff
failed to exhaust his administrative remedies prior to commencing this action, and (2) Plaintiff's deliberate indifference claim
fails as a matter of law. Dkt. No. 15-1, Def.'s Mem. of Law. Plaintiff has filed an opposition to the Motion. Dkt. No. 17, Pl.'s Opp.
I. STANDARD OF REVIEW
On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972).
The trial court's function “is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which
might be offered in support thereof.” Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). “The issue is not whether a plaintiff
will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S.
232, 236 (1974) (overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).
“Generally, in determining a 12(b)(6) motion, the court may only consider those matters alleged in the complaint, documents
attached to the complaint, ... matters to which the court may take judicial notice[,]” as well as documents incorporated by
reference in the complaint. Spence v. Senkowski, 1997 WL 394667, at *2 (N.D.N.Y. July 3, 1997) (citing Kramer v. Time Warner
Inc., 937 F.2d 767, 773 (2d Cir. 1991)); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (citing FED. R.
CIV. P. 10(c)). Moreover, “even if not attached or incorporated by reference, a document ‘upon which [the complaint] solely
relies and which is integral to the complaint’ may be considered by the court in ruling on such a motion.” Roth v. Jennings, 489
F.3d 499, 509 (2d Cir. 2007) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d at 47). However, “even if a document
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 17 of 22

Thompson v. Kelly, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 2
is ‘integral’ to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the
document.” Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). “It must also be clear that there exists no material disputed
issues of fact regarding the relevance of the document.” Id.
The court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the “well-pleaded” allegations
of the complaint. See Retail Clerks Intern. Ass'n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 (1963); see
also Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008). Nevertheless, “the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Therefore,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation
omitted).
*2 A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff's complaint includes “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v.
Iqbal, 556 U.S. at 697 (citing Twombly). “A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
at 678. This plausibility standard “is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Id. In this respect, to survive dismissal, a plaintiff “must provide the grounds upon which
his claim rests through factual allegations sufficient ‘to raise a right to relief above the speculative level.’ ” ATSI Commc'ns,
Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 440 U.S. at 555). Thus, in spite of
the deference the court is bound to give to the plaintiff's allegations, it is not proper for the court to assume that “the [plaintiff]
can prove facts [which he or she] has not alleged, or that the defendants have violated the ... laws in ways that have not been
alleged.” Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). The
process of determining whether a plaintiff has “nudged [his] claims ... across the line from conceivable to plausible,” entails
a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v.
Iqbal, 556 U.S. at 679-80.
II. FACTS 1
On September 15, 2017, Plaintiff arrived at Franklin Correctional Facility. Compl. at p. 5. He told a nurse that he had a heart
problem, and she took his vitals. Id. Plaintiff claims he received no help at sick call, and was only told he was scheduled to see
a doctor soon. Id. On October 10, 2017, Plaintiff had more severe symptoms, and Nurse Kelly gave him cough syrup, and other
nurses repeatedly told him he would be seeing a doctor the following week. Id. Plaintiff suffered a mild heart attack and had
to be flown to Albany Medical Center, and received surgery on January 10, 2018. Id. Plaintiff now has to take medicine every
day and will have to for the rest of his life; he brings an Eighth Amendment deliberate indifference claim and seeks monetary
compensation. Id. at pp. 5 & 7.
III. DISCUSSION
A. Exhaustion of Administrative Remedies
Defendant moves for dismissal on the basis that Plaintiff failed to exhaust his administrative remedies prior to commencing
this action. Def.'s Mem. of Law at pp. 3-7. 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).
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 18 of 22

Thompson v. Kelly, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 3
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).
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 Exhaustion of administrative remedies is an affirmative defense which must be raised by the defendant. Jenkins v. Haubert,
179 F.3d 19, 28-29 (2d Cir. 1999). Once raised, the defendant bears the burden of proving that administrative remedies have not
been exhausted. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec. 28, 1999) (citations omitted). The party opposing
the affirmative defense “may delay the ultimate determination as to its validity until trial by showing that there is a genuine
issue of material fact to be determined.” Id. (citations omitted).
Typically, this inquiry is fact specific and would not be appropriate for resolution on a motion to dismiss. However, “[a]n
affirmative defense may be raised by a pre-answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment
procedure, if the defense appears on the face of the complaint.” McCoy v. Goord, 255 F. Supp. 2d 233, 249 (S.D.N.Y. 2003)
(citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 74-75 (2d Cir. 1998)). Thus, if it is apparent from the face of
Plaintiff's Complaint that he failed to exhaust his administrative remedies prior to bringing this action, then a Rule 12(b)(6)
motion may be the proper vehicle to raise the defense.
Plaintiff submitted a pro forma complaint typically utilized by pro se inmates seeking to vindicate their rights pursuant to 42
U.S.C. § 1983. Therein, he indicated that there is a grievance procedure at his facility, and that he did not file a grievance about
the events described in the Complaint at any correctional facility. Compl. at p. 6. Taking Plaintiff's statements in his Complaint
as true, it would appear from the face of the Complaint that he had not completed the administrative remedies available to him
prior to bringing this civil action; thus, Defendant may properly raise this affirmative defense by way of her Motion to Dismiss.
1. Plaintiff's Failure to Exhaust Administrative Remedies
In this case, Plaintiff admitted in his Complaint that he did not file a grievance regarding the events alleged in the Complaint.
Compl. at p. 6. Plaintiff argues in his opposition to the Motion that he “assumed that going to sick call every single week
after being told [he] would see a doctor would be considered taking the appropriate measures.” Pl.'s Opp. However, the PLRA
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. at 93. To the extent Plaintiff contends that by going to sick call he put
corrections staff on notice of his allegations, such informal means of grieving do not satisfy the PLRA's exhaustion requirement.
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)
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 19 of 22

Thompson v. Kelly, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 4
(“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.”
Macias v. Zenk, 495 F.3d at 43. As such, Plaintiff's actions taken in going to sick call do not satisfy the PLRA's exhaustion
requirements. See Crook v. Sanchez, 2014 WL 7399313, at *14 (E.D.N.Y. Feb. 12, 2014) (holding that writing to medical did
not satisfy the exhaustion requirement, and collecting cases with similar findings).
*4 Accordingly, Plaintiff did not exhaust his administrative remedies. The Court will discuss below whether Plaintiff's
contentions may provide a valid excuse for his failure to exhaust.
2. Whether Plaintiff's Failure to Exhaust Administrative Remedies May be Excused
A prisoner's failure to exhaust administrative remedies may be excused if remedies were unavailable to the inmate. Ross v. Blake,
136 S. Ct. at 1858. “An inmate ... must exhaust available remedies, but need not exhaust unavailable ones.” Id. The Supreme
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, Plaintiff contends that he did not follow the exhaustion procedure because (1) he believed that using the
grievance procedure would be futile, and (2) he feared retaliation. Pl.'s Opp. Plaintiff describes that “through [his] experience
dealing with the grievance program [he] felt that nothing would come of it.” Pl.'s Opp. 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.”). As such, Plaintiff's
contention that he believed nothing would come of filing a grievance is unavailing.
Plaintiff also alleges that he did not submit a grievance because he feared corrections staff would retaliate against him. Pl.'s Opp.
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 alleges in his Complaint that he did not file a grievance because he feared mistreatment; he
filed a grievance about a package and the package room began denying his packages after that. Compl. at pp. 6-7. He elaborates
in his Opposition that after he filed a grievance about a package, he never received the package; “nothing favorable came of
that grievance,” and his next six packages were all refused by the facility. Pl.'s Opp. Significantly, this allegedly occurred in
“early 2018,” Pl.'s Opp., while Plaintiff alleges Nurse Kelly's alleged indifference occurred in September and October of 2017,
and so could not have been the basis for not filing a grievance against Kelly.
“Specific threats of retaliation or intimidation by prison employees can render administrative remedies unavailable.” Rodriguez
v. Cross, 2017 WL 2791063, at *8 (N.D.N.Y. May 9, 2017) (citing Ross v. Blake, 136 S. Ct. at 1860, n. 3). As the Second
Circuit has stated, “[t]he test for deciding whether the ordinary grievance procedures were available must be an objective one:
that is, would ‘a similarly situated individual of ordinary firmness’ have deemed them available.” Hemphill v. New York, 380
F.3d 680, 688 (2d Cir. 2004). Here, Plaintiff has merely stated a “generalized fear of retaliation,” without allegations of any
specific threats or other actions that would prevent him from filing a grievance. 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). Indeed, here, Plaintiff does not allege that “he
was subjected to any specific, affirmative threats of retaliation.” Bookman v. Lindstrand, 2018 WL 3121688, at *10 (N.D.N.Y.
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 20 of 22

Thompson v. Kelly, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 5
Feb. 14, 2018); see also Rodriguez v. Cty. of Suffolk, 2014 WL 3531897, at *5. In any event, “Plaintiff's prior experience filing
grievances is not a well-founded basis for him to fear retaliation from filing a grievance relative to the present incident.” White
v. Dishaw, 2017 WL 4325770, at *3 (N.D.N.Y. June 20, 2017). As such, Plaintiff's fear of retaliation is insufficient to excuse
his failure to exhaust. 2
*5 Plaintiff has therefore not made allegations that could satisfy any of the three circumstances that could excuse failing to
exhaust under Ross. Accordingly, the Court finds that Plaintiff has not exhausted his administrative remedies, and that the failure
to exhaust was not excusable. The Court therefore recommends that Defendant Kelly's Motion be granted based on Plaintiff's
failure to exhaust. 3
B. John Doe Defendants
As to Plaintiff's claims against the four unnamed Nurse Doe Defendants, the Court recommends dismissing these claims as well.
Plaintiff's claims against these Defendants cannot proceed for the same reason as his claim against the named Defendant: he has
failed to exhaust his administrative remedies. As such, these claims suffer from the same defect and are subject to dismissal. See
Bush v. Danziger, 2006 WL 3019572, at *3 (S.D.N.Y. Oct. 23, 2006) (dismissing sua sponte claims against John Doe Defendants
because claims would be barred on the same basis as claims against moving defendants); Ali v. Ramos, 2018 WL 1353210, at
*1, n.1 (S.D.N.Y. Mar. 14, 2018) (considering sua sponte dismissing the Complaint against a John Doe defendant, and noting
that such would be appropriate because the plaintiff had an opportunity to be heard through responding to the named defendant's
motion to dismiss); Preterotti v. Lora, 2016 WL 6810883, at *9 (Oct. 6, 2016).
IV. CONCLUSION
WHEREFORE, for the reasons stated herein, it is hereby
RECOMMENDED, that Defendant's Motion to Dismiss (Dkt. No. 15) be GRANTED and that Plaintiff's claims against
Defendant Kelly be DISMISSED; and it is further
RECOMMENDED, that Plaintiff's claims against Nurse Doe Nos. 1-4 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 the 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., 2019 WL 2374119
Case 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 21 of 22

Thompson v. Kelly, Not Reported in Fed. Supp. (2019)
© 2026 Thomson Reuters. No claim to original U.S. Government Works. 6
Footnotes
1 The facts here are derived from Plaintiff's Complaint and are stated in the light most favorable to him.
2 Plaintiff also submits a separate letter regarding recent occurrences regarding his medical care that he believes to be
retaliatory, although he does not assert what he believes the retaliation was in relation to. Dkt. No. 18. The Court notes
that, to the extent Plaintiff intends the letter to explain his fear of retaliation in relation to his failure to exhaust, it appears
to relate solely to actions taken after Plaintiff's time to file a grievance expired, and thus would not serve to provide an
excuse for his failure to exhaust.
3 Because the Court recommends that Defendant Kelly's Motion be granted based upon Plaintiff's failure to exhaust his
administrative remedies, it does not reach her contentions regarding the merits of Plaintiff's deliberate indifference claim.
Def.'s Mem. of Law at pp. 8-11. However, were the Court to reach this issue, it would recommend denying the Motion.
Giving deference to Plaintiff's pro se status, “the Court is unable to conclude at this early stage–and on the basis of
the Complaint alone–that the Defendant[ ] [was] not deliberately indifferent to [Plaintiff's] serious medical needs. The
Court must await further development of the facts.” Silvera v. Conn. Dep't of Corr., 726 F. Supp. 2d 183, 192 (D. Conn.
2010) (citing Chance v. Armstrong, 143 F.3d 698, 703-04 (2d Cir. 1998)).
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 9:24-cv-00002-BKS-MJK Document 42 Filed 01/28/26 Page 22 of 22