Bumpars v. Department of Corrections and Community Supervision et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________________________________
Devante Andrew Bumpars,
Plaintiff,
v. 9:24-CV-295
(AMN/MJK)
Department of Corrections and Community Supervision, et. al.
Defendant.
_____________________________________________________________________
Devante Andrew Bumpars, Plaintiff, pro se
Chi-Hsin E. Engelhart, Esq., Asst. Attorney General, for Defendants
Mitchell J. Katz, United States Magistrate Judge
To the Honorable Anne M. Nardacci, U.S. District Court Judge:
ORDER & REPORT-RECOMMENDATION
United States District Court Judge Anne M. Nardacci referred
Defendants’ summary judgment and Fed. R. Civ. P. 12(b)(6) motions to
the Court for report and recommendation.1 In this pro se civil rights
action, Bumpars alleges that Defendants violated the Eighth
Amendment when Defendant J. Stevens wrestled him to the ground
and Defendant Johnathan Souza beat him with an object. For the
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).
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following reasons, this Court recommends granting Defendants’
summary judgment motion.
I. BACKGROUND
A. Facts
Bumpars’ Complaint alleges the following facts. On February 2,
2022, Bumpars, while incarcerated at Great Meadows Correctional
Facility, requested mental health treatment. (Second Amended
Complaint, Dkt. 39, at pg. 4). Two DOCCS officials escorted Bumpars to
the mental health unit. Id. During the shift change, under a CCTV
camera, either Defendant Stevens, Defendant Johnathan Souza, or both
told Bumpars that he needed to “cuff up.” Id. In response, Bumpars
asked “why” because he “was brought down” to the medical unit
“without cuffs on.” Id. (cleaned up). Without explanation, Defendant
Stevens wrestled Bumpars to the ground, and Defendant Souza
“reached into Stevens’ belt clip, took out an object and used it to
assault” Bumpars. Id. at 5. Once the attack was over, Bumpars noticed
three blood droplets on the floor. Id. at 4.
Defendants then placed Bumpars in the medical unit’s “restart
chair,” and a DOCCS-mental-health official cleared Bumpars of suicide
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watch. Id. Shortly after this, a DOCCS nurse assessed Bumpars and
determined that he suffered a one-and-a-half inch cut above his right
eye and another cut on his right shin bone. Id. Bumpars also alleges
that he “refused medical treatment due to fear of . . . being further
brutally assaulted in one of the hospital rooms with no cameras by
staff.” Id.
Six days after the assault, Bumpars allegedly wrote a letter to
“Great Meadow Correctional Facility” attempting to grieve the incident.
(Bumpars Response, Dkt. 67, at pg. 16). He received no response. Id. at
2. Roughly two months later, he wrote another letter to the
“Superintendent of Great Meadow” attempting to appeal the lack of a
response. Id. at 2, 17. Again, Bumpars received no response. Id. at 2.
Finally, in January 2024, Bumpars wrote a letter to the Central Office
Review Committee attempting to appeal the second lack of a response.
Id. at 2, 18, 19, 21. There is no evidence of these grievances in DOCCS
systems. See (Bumpars Grievance History, Dkt. 54-6, at pg. 2). But
DOCCS system notes that before the incident, from 2017 to 2022,
Bumpars properly filed four grievances. Id. And after the incident, from
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August 2022 to April 2024, Bumpars properly filed two more
grievances. Id.
B. Procedural History
On March 1, 2024, Bumpars began this lawsuit by filing a
Complaint and moving for leave to proceed in forma pauperis. (Dkts. 1,
5). Judge Nardacci granted Bumpars’ request to proceed in forma
pauperis, reviewed the Complaint under 28 U.S.C. §1915 and dismissed
Bumpars Complaint for failure to state a claim against Defendants
DOCCS, Great Meadows Correctional Facility, and Stevens. (Dkt. 6).
Bumpars amended his Complaint and Judge Nardacci, among
other things, accepted the amended Complaint, deemed it the operative
pleading, added Defendants Souza and Stevens to the lawsuit, and
again reviewed the Complaint under §1915. (Dkts. 13, 15).
Bumpars again amended his Complaint to identify J. Stevens.
(Dkt 40).
Now, Defendants move for summary judgment, arguing that
Bumpars did not exhaust the administrative remedies available to him.
(Dkt. 32). Alternatively, Defendant Stevens move for dismissal under
Fed. R. Civ. P. 12(b)(6) and Defendant Souza moves for partial
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dismissal under the same provision. Id. Bumpars moved for the
appointment of counsel and responded to Defendants’ summary
judgment and 12(b)(6) motions. (Dkts. 66, 67). Defendants replied (Dkt.
69). Although the Court granted Bumpars time to file a sur-reply, he
did not. (Dkt. 72).
II. STANDARD OF REVIEW
A. Summary Judgment2
“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
2 Defendants’ motion for summary judgment is limited to their exhaustion defense.
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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.
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
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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).
B. Motions to Dismiss under Fed. R. Civ. P. 12(b)(6)3
Although Complaints do “not need detailed factual allegations” to
survive a motion to dismiss, “a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal quotation omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than the unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.662, 678
(2009). Complaints which “tenders naked assertions devoid of further
factual enhancement” will not suffice. Id. Rather, a complaint’s “factual
allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (cleaned up).
3 Defendants have moved to dismiss Bumpars’ excessive force, deliberate
indifference to medical needs, and due process claims.
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When ruling on a defendant’s motion to dismiss, all factual
allegations contained in the complaint must be accepted as true and all
reasonable inferences must be drawn in favor of the plaintiff. Koch v.
Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). But “the tenet
that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Twombly, 550 U.S. at
155. Additionally, “in adjudicating a Rule 12(b)(6) motion, a district
court must confine its consideration to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in
the complaint by reference, and to matters of which judicial notice may
be taken.” Leonard F. v. Isr. Disc. Bank of New York, 199 F.3d 99, 107
(2d Cir. 1999) (cleaned up).
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
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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
A. Defendants are entitled to summary judgment because
there is no objective evidence that Bumpars exhausted
the administrative remedies available to him.
The District Court should find that Bumpars 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
unavailable. Here, there is no objective evidence Bumpars sought to
exhaust the administrative remedies available to him. The only
evidence he submits on this score are unverified letters. So this Court
recommends finding that Bumpars 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
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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). “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
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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).
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.
DOCCS has a three-step-grievance process. The first step requires
an incarcerated individual to file a complaint with the facility’s
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incarcerated grievance program clerk within 21 days of the alleged
event. 7 N.Y.C.R.R § 701.5(a). The Incarcerated Grievance Review
Committee 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 the Committee’s determination to the facility’s superintendent. 7
N.Y.C.R.R § 701.5(c). On appeal, the superintendent reviews the
Committee’s decision 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).
The Court should grant Defendants summary judgment because
Bumpars did not file any grievance related to this claim. To start,
Bumpars submitted documents which are not grievances within the
meaning of New York’s regulations. The regulations are crystal clear:
“A letter addressed to facility or central office staff is not a grievance.” 7
N.Y.C.C.R. § 701.2(a). Yet the documents Bumpars submitted as
exhaustion evidence do not comply with this regulation. For example,
the first document is a letter addressed to Great Meadow Correctional
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Facility. (Bumpars Response, Dkt. 67, at pg. 16). The same can be said
for the document Bumpars claims is an appeal to the C.O.R.C. (Id. at
pg. 21). As a result, Bumpars’ letters are not grievances. And because
they are not, Bumpars did not properly exhaust the administrative
remedies available to him. Woodford v. Ngo, 548 U.S. 81, 90 (2006)
(“Proper exhaustion demands compliance with an agency's deadlines
and other critical procedural rules”). And because Bumpars did not
exhaust the available administrative remedies, the District Court
should grant summary judgment. See, e.g., Thomas v. Wood, No. 19-CV-
6915, 2021 WL 5827275, at *4 (W.D.N.Y. Dec. 8, 2021)
finding that the plaintiff failed to exhaust the available administrative
remedies because “letters cannot simply be treated as a ‘grievance.’”)
Should the Court construe the letters as grievances, the outcome
is the same because there is no evidence that the documents were filed.
From 2017 to 2022, Bumpars filed four grievances, showing that he was
familiar with the grievance process. (Bumpars Grievance History, Dkt.
54-6, at pg. 2). Yet no records indicate Bumpars properly filed a
grievance related to this incident. See (Id. at 1-2). That alone is enough
to find that Bumpars did not comply with the PLRA’s exhaustion
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requirement. See, e.g., Bradshaw v. Piccolo, 772 F. Supp. 3d 331, 346
(W.D.N.Y. 2025) (finding that the plaintiff failed to exhaust the
available administrative remedies because there was no evidence that
the grievance as properly filed).
Bumpars’ counter argument on this score is unpersuasive.
Bumpars argues that Defendants “failed to keep a record of” his
grievances so there is an issue of fact. (Bumpars Response, Dkt. 67, at
pg. 7-8). Not so. Bumpars’ claim that Defendants lost his grievance is
mere speculation. And “mere contentions or speculation regarding
mishandling of” grievances does “not create a genuine issue of material
fact when there is no evidence to support the allegations.” Dean v.
Sheehan, No. 9:22-CV-00746 (BKS/ML), 2025 WL 1811183, at *13
(N.D.N.Y. July 1, 2025) (cleaned up). Bumpars needed to “provide some
corroboration of a claim that a grievance was submitted.” Id. (cleaned
up). Yet here, there are only the unverified letters to support Bumpars’
claim. But Bumpars “cannot rely on the copies of the grievances
submitted with his opposition, because there is no record of them
having been filed with” DOCCS. Butler v. Viscusi, No. 11-CV-4844, 2014
WL 1407262, at *8 (E.D.N.Y. Apr. 11, 2014). Bumpars’ documents are
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too good to be true: Once Defendants moved for summary judgment on
Bumpars’ failure to exhaust, the unverified grievances—which cannot
be found in DOCCS’ system—appear attached to Bumpars’ response.
Those unverified documents cannot save Bumpars’ claim. See, e.g.,
Harris v. Loverde, No. 08-CV-6069, 2011 WL 5080089 at *4 (W.D.N.Y.
Oct. 26, 2011) (finding the plaintiff failed to exhaust when they
submitted a unverified copy of a grievance with their summary
judgment response and there was no record of it in DOCCS’ system).
To end, the Court recommends granting Defendants summary
judgment. Bumpars failed to comply with the PLRA’s exhaustion
requirement, which is fatal to his claim. While Bumpars submitted
documents to refute Defendants argument, that is not enough. The
documents do not comply with 7 N.Y.C.C.R. § 701.2, so the District
Court should not treat the letters as grievances. If the Court treats the
letters as grievances, then it should reject them because they are
unverified and cannot be found in DOCCS system. More to the point,
Bumpars has not alleged that there were special circumstances that
prevented him from filing the grievances. He only alleges that
Defendants lost his grievances. That is not enough. As a result,
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Bumpars failed to exhaust the administrative remedies available to
him. And because this is so, Defendants are entitled to summary
judgment.
B. The District Court should dismiss Bumpars’ deliberate
indifference to medical needs claim because Bumpars
either declined or accepted the medical care offered to
him.
The District Court should dismiss Bumpars deliberate
indifference to medical needs claim. To survive a motion dismiss in the
deliberate indifference context, plaintiffs must plausibly allege that
their medical condition was sufficiently serious, and the defendant
acted with a sufficiently culpable mind. Here, Bumpars either denied or
received the medical care offered to him. Either way, Bumpars failed to
state a deliberate indifference to medical needs claim. So the Court
recommends dismissing Bumpars’ deliberate indifference claim.
“To state a cognizable claim,” incarcerated persons “must allege
acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle v. Gamble, 429 U.S. 97,
106 (1976). This standard “includes both subjective and objective
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components.” Mallet v. New York State Dep't of Corr. & Cmty.
Supervision, 126 F.4th 125, 132 (2d Cir. 2025) (quotation omitted).
The objective prong is satisfied when an incarcerated person
proves the alleged deprivation is sufficiently serious. See Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). “There is no single metric”
to determine whether a medical condition is sufficiently serious. Mallet,
126 F.4th at 132. To be a sufficiently serious medical condition, the
condition must be one “of urgency” and one that “may result in
degeneration or extreme pain, significantly affect[] daily activities,” or
the condition “involves chronic and substantial pain.” Id. (quotations
omitted). “A serious medical need can also” exist where the “failure to
treat” an incarcerated person’s “condition” results “in further significant
injury or the unnecessary and wanton infliction of pain” Webster v.
Fisher, 694 F. Supp. 2d 163, 191 (N.D.N.Y. 2010). But “not every lapse
in prison medical care will rise to the level of a constitutional violation.”
Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir. 2003).
To satisfy the subjective prong, an incarcerated person must show
that prison officials “acted with a sufficiently culpable mind.” Mallet,
126 F.4th at 132 (cleaned up). The act, or omission, must show that the
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prison officials consciously disregarded a substantial risk of serious
harm. See Farmer v. Brennan, 511 U.S. 825, 835 (1994). In simpler
terms, plaintiffs must show a defendant acted with a mental state like
criminal recklessness. Id at 839-40.
The Complaint does not state a deliberate indifference to medical
needs claim. Taking the first version of events, Bumpars “refused
medical treatment.” (Complaint, Dkt. 1, at pg. 4). If true, Bumpars’
refusal of medical treatment means that he cannot pursue a deliberate
indifference to medical treatment claim. See Jones v. Smith, 784 F.2d
149, 151–52 (2d Cir.1986) (affirming lower court ruling that a prisoner
who declines medical treatment cannot establish an Eighth Amendment
claim for medical deliberate indifference). Indeed, an incarcerated
person’s “refusal to receive treatment indicates that the inmate's
treating doctors and nurses were not deliberately indifferent to the
inmate's medical needs.” Nelson v. Deming, 140 F. Supp. 3d 248, 261
(W.D.N.Y. 2015). Bumpars’ counterargument—that he refused
treatment because he feared being assaulted again—is insufficient to
state a claim. See Brown v. White, No. 08-CV-200 (GLS/ATB), 2010 WL
985184, at *9 (N.D.N.Y. Mar. 15, 2010) (“Plaintiff's conclusory and
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inconsistent allegations that he was effectively deterred by conduct of
the defendant from seeking all medical attention . . . is insufficient.”).
As a result, the Complaint does not state a deliberate indifference to
medical needs claim.
The same thing can be said for the conflicting allegations in
Bumpars’ Complaint. Taking the second version of events, Bumpars
notes that he was “directed to sit in the restart chair in the first mental
health room” and he “was then seen by a mental health official” and
“cleared of suicide watch.” (Bumpars Response, Dkt. 67, pg. 2, at ¶7).
DOCCS nurse assessed Bumpars and determined that he suffered a
one-and-a-half inch cut above his right eye and another cut on his right
shin bone. (Second Amended Complaint, Dkt. 39, at pg. 4). But
Bumpars does not claim that the treatment was medically inadequate.
See id. So Bumpars’ response does not state a deliberate indifference to
medical needs claim. See, e.g., Boyd v. Deasis, 524 F. Supp. 3d 128, 143-
44 (W.D.N.Y. 2021) (rejecting deliberate indifferent to medical needs
claim where the plaintiff received treatment and does not allege that it
was inadequate); see also Rutherford v. Correct Care Sols., LLC, No. 18
CV 12049, 2020 WL 550701, at *6 (S.D.N.Y. Feb. 4, 2020) (“So long as
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the treatment given is adequate, the fact that a prisoner might prefer a
different treatment does not give rise to” a “constitutional violation.”).
Even in a hypothetical third scenario the outcome is still the
same. Let’s say Bumpars received treatment for his mental health
issues but rejected treatment for the cut above his eye. That would still
be fatal to his claim. Bumpars received treatment for his mental health
issues, so there is no deliberate indifference claim, and he rejected
treatment for his cut, so there is no deliberate indifference claim.
To quickly conclude, Bumpars alleges either that he was offered
medical treatment and refused it, or he obtained medical treatment and
did not have any issue with it. Neither is sufficient to sustain a
deliberate indifference to medical needs claim. Thus, the District Court
should dismiss Bumpars’ deliberate indifference claim.
C. The District Court should dismiss Bumpars’ substantive
due process claim because it is duplicative of his excessive
force claim.
Where a particular Amendment “provides an explicit textual
source of constitutional protection” against a particular sort of
government behavior, “that Amendment, not the more generalized
notion of substantive due process, must be the guide for analyzing these
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claims.” Graham v. Connor, 490 U.S. 386, 395 (1989) (cleaned up); see
also Albright v. Oliver, 510 U.S. 266, 273 (1994) As a result,
“substantive due process claims must be dismissed where they are
merely duplicative of claims explicitly protected under other
constitutional sources.” Roman v. Velleca, No. 3:11-CV-1867, 2012 WL
4445475, at *10 (D. Conn. Sept. 25, 2012) (cleaned up).
Bumpars’ due process claim is duplicative of his excessive force
claim. To start, Bumpars acknowledges that his due process claim is a
substantive one. See (Bumpars Response, Dkt. 67, pg. 11) (“The Due
Process clause of the Fourteenth Amendment guarantees more than fair
process and extends to a substantive sphere as well”) (cleaned up).
Next, he identifies his liberty interest—remaining free from excessive
force. (Id. at pg. 12). But that interest is already protected by the Eighth
Amendment. See Hudson v. McMillian, 503 U.S. 1 (1992) (holding that
the Eighth Amendment prohibits prison officials from using excessive
force on incarcerated persons.). So Bumpars’ substantive due process
claim must be dismissed. See, e.g., Henderson v. Popp, No 22-CV-242
(AMN/MJK), 2025 WL 1033853 at * 24 (N.D.N.Y. Mar. 4, 2025) (finding
that the plaintiff’s substantive due process claim should be dismissed
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because it was duplicative of his First Amendment retaliation claim)
(cleaned up).
D. The District Court should not dismiss Bumpars’ excessive
force claim because the Complaint plausibly alleges that
Defendants Stevens and Souza assaulted Bumpars.
The Court recommends denying Defendants motion to dismiss as
to Bumpars’ excessive force claim. In the excessive force context,
plaintiffs must show that the defendants conduct was repugnant to the
conscience of mankind and wanton. Here, Bumpars’ Complaint
plausibly alleges that the Defendants used excessive force. Thus, the
District Court, if it finds that Bumpars exhausted the administrative
remedies available to him, should deny Defendants motion to dismiss
on this issue.
Incarcerated individuals enjoy Eighth Amendment protection
against the use of excessive force and may recover damages under 42
U.S.C. § 1983 for a violation of those rights. Hudson v. McMillian, 503
U.S. 1, 9-10 (1992). To sustain an Eighth-Amendment-excessive-force
claim, plaintiffs must establish both the objective and subjective
elements of an Eighth Amendment claim. Blyden v. Mancusi, 186 F.3d
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252, 262 (2d Cir. 1999); Romano v. Howarth, 998 F.2d 101, 105 (2d Cir.
1993).
To satisfy the objective element of the constitutional standard for
excessive force, a defendant’s conduct must be “inconsistent with the
contemporary standards of decency.” Whitely v. Albers, 475 U.S. 312,
327 (1986) (citation omitted); Hudson, 503 U.S. at 9. “The Eighth
Amendment’s prohibition of ‘cruel and unusual’ punishments
necessarily excludes from constitutional recognition de minimis uses of
physical force, provided that the use of force is not of a sort repugnant
to the conscience of mankind.” Hudson, 503 U.S. at 9-10 (citations
omitted). “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates a prisoner’s
constitutional rights.” Sims v. Artuz, 230 F.3d 14, 22 (2d Cir. 2000)
(citation omitted). Claims “of excessive force may be established even if
the victim does not suffer serious . . . or significant injury, . . . provided
that the amount of force used is more than de minimis or involves force
that is repugnant to the conscience of mankind.” Hudson, 503 U.S. at 7-
10 (cleaned up).
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To prove the subjective element, plaintiffs must show that the
Defendant’s actions were wanton. Simms, 230 F.3d. at 21 (citation
omitted). The wantonness inquiry “turns on ‘whether force was applied
in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.’” Id. (quoting Hudson, 503 U.S. at 7).
When determining whether defendants acted in a malicious or wanton
manner, courts consider five factors: (1) the extent of the injury and the
mental state of the defendant; (2) the need for the application of force;
(3) the correlation between that need and the amount of force used; (4)
the threat reasonably perceived by the defendants; and (5) any efforts
made by the defendants to temper the severity of a forceful response.
Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003).
Accepting the facts alleged in the Second Amended Complaint as
true, Bumpars has plausibly alleged an excessive force claim. The
altercation began when Defendants Stevens or Souza told Bumpars he
needed to “cuff up” while the three men were under a camera. (Second
Amended Complaint, Dkt. 39, at pg. 4) Bumpars asked Stevens and
Souza why he needed to wear mechanical restraints after he was
initially escorted without them. (Second Amended Complaint, Dkt. 39,
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at pg. 4) Responding without words, Stevens wrestled Bumpars to the
ground and Souza “reached into Steven’s belt clip, took out an object”
and beat Bumpars with it. (Second Amended Complaint, Dkt. 39, at pg.
5). On this record, “a rational factfinder” could “find that” Defendants
Souza and Stevens “used force maliciously and sadistically.” Morrison v.
Hartman, 898 F. Supp. 2d 577, 582 (W.D.N.Y. 2012). So Bumpars’
excessive force claim against Stevens and Souza should not be
dismissed.
Defendants’ counterargument on this point is unavailing.
Defendants argue that Bumpars “does not allege any injuries resulting
from Officer Stevens’ action.” (Def. Reply, Dkt. 54-8, at pg. 11). But the
Complaint does not allege which action caused the injury. See (Second
Amended Complaint, Dkt. 39, at pgs. 4-5). Either the wrestling, being
beaten with the object, or both could have caused the laceration over
Bumpars’ eye. See id. In consequence, Defendants are incorrect to say
Bumpars did not allege Stevens did not cause him injury.
E. Bumpars should not be appointed counsel.
The Court denies Bumpars’ motion to appoint counsel. When
determining whether indigent litigants should be appointed counsel,
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Cours must examine five factors. Here, after examining those factors,
the Court finds that Bumpars is not entitled to counsel.
When analyzing requests to appoint counsel, courts consider five
factors: (1) “whether the indigent” person’s claims seem likely to be of
substance;” (2) “whether the indigent” person “is able to investigate the
crucial facts concerning” their “claim;” (3) “whether conflicting evidence
implicating the need for cross-examination will be the major proof
presented to the fact finder;” (4) “whether the legal issues involved are
complex; and” (5) “whether there are any special reasons why
appointment of counsel would be more likely to lead to a just
determination.” Bussey v. Moore, 23-CV-247, 2025 WL 1650792 at *1
(W.D.N.Y. June 11, 2025) (cleaned up) (citing Hodges v. Police Officers,
802 F.2d 58 (2d Cir. 1986)).
Likely to be of substance. Bumpars’ claim is unlikely to be
meritorious because he did not exhaust the administrative process. But
failure to survive a dispositive motion does not mean a claim is unlikely
to be of substance. See Ferrelli v. River Manor Health Care Ctr., 323
F.3d 196, 204 (2d Cir. 2003) (“Some meritorious, and hence counsel-
worthy, cases may fail to survive a dispositive motion.”) (cleaned up). In
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27
fact, Bumpars’ excessive force claim is not frivolous. Still, balancing the
equities—and keeping in mind that the bar for this factor is low—the
Court finds that this factor weighs against Bumpars’ request for
counsel. See Carmona v. United States Bureau of Prisons, 243 F.3d 629,
632 (2d Cir.2001) (“Even though a claim may not be characterized as
frivolous, counsel should not be appointed in a case where the merits of
the indigent's claim are thin and his chances of prevailing are therefore
poor.”).
Investigation of crucial facts. Bumpars has not shown that he can
investigate the facts critical to his case, which weighs in his favor. See
Hodge, 802 F.2d at 61 (stating that the inability of an incarcerated
persons to investigate their claim weighs in favor of appointing
counsel). But here Bumpars “was witness to most, if not all, of the
events and facts giving rise to his claims,” which weighs against the
appointment of counsel. McIntosh v. United States, No. 14-CV-7889,
2016 WL 1274585 at *37 (S.D.N.Y. Mar. 31, 2016).
Conflicting evidence. At this point, there is no conflicting evidence.
So this factor does not weigh in any party’s favor. See Murray v. Noeth,
No. 19-CV-06342, 2021 WL 12153214 at *2 (W.D.N.Y. Nov. 29, 2021)
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(denying the plaintiff’s request for counsel because the Court lacked
sufficient information to consider the Hodge factors).
Complexity of issues. The issue in this case is not complex. It is a
run-of-the-mill excessive force claim. Indeed, Bumpars’ response to the
Summary Judgment motion was well drafted, and he was astute
enough to request a sur-reply. Bumpars has shown that he can
prosecute this case. As a result, the Court finds that this factor weighs
against Bumpars’ request for counsel. Whetsel v. Montas, No. 19-CV-
2687, 2019 WL 2743641 at *1 (E.D.N.Y. July 1, 2019) (denying motion
to appoint counsel where the claim is “not unduly complex and that
Plaintiff can adequately prosecute his claims himself pro se.”).
Special Reasons. The Court cannot find any special reasons to
appoint counsel. The only reason Bumpars offers for requesting counsel
is that he has been unable to find counsel himself. (Bumpars Mot. for
Counsel, Dkt. 66, at pg. 1). That is not a special reason. So the Court
finds that this factor weighs against Bumpars’ request for counsel.
* * *
Balancing the Hodge factors, the Court finds that Bumpars is not
entitled to the appointment of counsel. Thus, the Court denies
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Bumpars’ motion for appointment of counsel without prejudice. If this
action is not ultimately dismissed, Bumpars may choose to file a new
motion for appointment of counsel, at which time the Court might be
better able to determine whether such appointment is warranted.
V. CONCLUSION
WHEREFORE, based on the findings above, it is
RECOMMENDED, that the District Court GRANT Defendants’
motion for summary judgment (Dkt. 54) because Bumpars did not
exhaust his PLRA claim.
Should the District Court disagree with that recommendation it
is RECOMMENDED, that the District Court DISMISS Bumpars’
deliberate indifference to medical needs claims (Dkts. 39, 67); and it
is also
RECOMMENDED, that the District Court DISMISS Bumpars’
due process claim because it is duplicative of his excessive force claim
(Dkts. 39, 67).
It is further RECOMMENDED, that the District Court DENY
Bumpars’ request for counsel (Dkt. 66) because the request is moot.
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It is further 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: November 21, 2025
________________________
Hon. Mitchell J. Katz
U.S. Magistrate Judge
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Brown v. White, Not Reported in F.Supp.2d (2010)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2010 WL 985184
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial staff and not assigned editorial enhancements.
United States District Court,
N.D. New York.
Rodney BROWN, Plaintiff,
v.
J. WHITE, Franklin Correctional Facility, Defendant.
Civil Action No. 9:08-cv-200 (GLS/ATB).
|
March 15, 2010.
Attorneys and Law Firms
Rodney Brown, Brooklyn, NY, pro se.
Hon. Andrew M. Cuomo, Attorney General of the State of New York, Dean J. Higgins, Esq., of Counsel, Albany, NY, for the
Defendants.
ORDER
GARY L. SHARPE, District Judge.
*1 The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge Andrew T.
Baxter, duly filed February 18, 2010. Following ten days from the service thereof, the Clerk has sent the file, including any
and all objections filed by the parties herein.
No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error,
it is hereby
ORDERED, that the Report-Recommendation of Magistrate Judge Andrew T. Baxter filed February 18, 2010 is ACCEPTED
in its entirety for the reasons state therein, and it is further
ORDERED, that defendant White's motion for summary judgment (Dkt. No. 44) is GRANTED and the complaint is
DISMISSED IN ITS ENTIRETY, and it is further
ORDERED, that the Clerk enter judgment in favor of the defendant against the plaintiff, and it is further
ORDERED, that the Clerk of the court serve a copy of this order upon the parties in accordance with this court's local rules.
IT IS SO ORDERED.
REPORT-RECOMMENDATION
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ANDREW T. BAXTER, United States Magistrate Judge.
This matter has been referred to me for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N .Y.
72.3(c), by the Honorable Gary L. Sharpe, United States District Judge.
In this amended civil rights complaint, plaintiff alleges that defendant denied him adequate medical care, in violation of the
Eighth Amendment, from October 11, 2007 until January 15, 2008, while plaintiff was an inmate in the custody of the Franklin
Correctional Facility (“Franklin”). (Dkt. No. 10). The defendant also construes the amended complaint as alleging that she
retaliated against the plaintiff for demanding necessary medical care by lodging an unfounded misbehavior report against him.
Plaintiff seeks unspecified monetary damages.
Presently before this court is the motion for summary judgment, pursuant to FED. R.CIV. P. 56, filed by the sole defendant, J.
(Jerre) White, a nurse at Franklin. (Dkt. No. 44). Plaintiff filed an unsworn response which did not include a memorandum of
law, affidavit, or response to the defendant's statement of material facts, as required by Local Rule 7.1(a). (Dkt. No. 48). For
the following reasons, this court recommends that the defendant's motion for summary judgment be granted and the complaint
dismissed in its entirety.
DISCUSSION
I. Facts
Plaintiff alleges that on February 27, 2007, he suffered head and lower back injuries due to a “slip and fall” at the Riker's
Island Correctional Facility (Riker's Island). Plaintiff states that he received medical treatment from, inter alia, a neurologist at
Bellevue Hospital. Plaintiff was eventually transferred to Franklin on September 7, 2007 and initiated several sick-call visits
to seek further treatment for the injuries purportedly resulting from the prior accident. (Amended Complaint (AC), Dkt. No.
10 at 7; Supplemental Ex. to AC, Dkt. No. 12 at 1).
*2 The Declaration of Nancy Armstrong 1 filed in support of the defendant's motion for summary judgment and related medical
records (Ex. B, Dkt. No. 44-5) establish that the plaintiff was examined by the medical staff at Franklin upon his arrival on
September 7, 2007, and by sick-call nurses on September 17, October 7, and October 9,2007. 2 (Dkt. No. 44-12 & Ex. B, Dkt.
No. 44-5). The report of plaintiff's initial medical screening at Franklin indicates that he claimed to have “left back problems”
resulting from a fall in February 2007; but the medical records at Franklin did not include prior documentation of the Riker's
Island accident. (Armstrong Decl. ¶ 3; Ex. B at 27). On September 17, 2007, the medical staff scheduled an appointment for the
plaintiff with a doctor to address his medical complaints, provided ibuprofen and an analgesic balm, and instructed the plaintiff
to use moist heat to address his lower back pain. (Armstrong Declaration, ¶¶ 8,9; Ex. B at 27). 3
On October 9, 2007, plaintiff again complained of pain in his back and elsewhere. (Armstrong Declaration, ¶ 11; Ex. B at 26).
An examination by a nurse of his back was negative, although the plaintiff was having slight difficulty bending at the waist. Id.
The plaintiff refused Ibuprofen and stated that he would “take all of” whatever medication the nurse would give him. (Armstrong
Decl. ¶ 13). Because the nurse was concerned that plaintiff would not take the medication as prescribed, and because he still
had a doctor's appointment scheduled, she did not issue plaintiff the Ibuprofen. (Armstrong Decl. ¶¶ 14-16; Ex. B at 26).
On the morning of October 11, 2007, plaintiff sought emergency medical attention because of “serious pain” in his head and
lower back and was seen by defendant, nurse Jerre White. 4 According to plaintiff's amended complaint and his deposition
(Def. Ex. F., Dkt. No. 44-9 at 22, 23, 32), Nurse White refused to examine or assist him, accused him of lying about his medical
condition, and caused him to be “locked up” by issuing a misbehavior report. The amended complaint suggests that Nurse White
had made a prior threat to take action against the plaintiff if he came to sick call again.
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In her sworn declaration, Nurse White states that, when the plaintiff appeared at Franklin's urgent care center on October 11th,
she completed a “full exam” of the patient, and found that his vital signs were normal and that he was not in any kind of distress.
(White Decl. ¶ 1, Dkt. No. 44-11). She states that plaintiff's complaint was “chronic, but not acute,” that he was issued over-the-
counter pain medication, and was scheduled to see a doctor. Plaintiff's medical records corroborate that Nurse White examined
the plaintiff and recorded his vital signs. (Ex. B at 25). Nurse White's contemporaneous progress notes also indicate that the
plaintiff was referred for a psychiatric interview, and the social worker concluded he was fine, but manipulative. (Ex. B at 25;
Armstrong Decl. ¶ 22).
*3 Nurse White concluded, based on her examination of the plaintiff and review of his prior medical records, that his complaint
was not an emergency and should have been addressed in a regular nursing call. She issued a misbehavior report accusing
plaintiff of falsely claiming an emergency and interfering with her regular duties. Nurse White averred that she issued the
misbehavior report, not because the plaintiff was complaining of medical problems, but because he was deliberately abusing
the facility's emergency sick call policy. (White Declaration ¶¶ 5-9; Ex. B at 25).
Nurse White stated that she did not treat the plaintiff at any time before or after October 11th, implicitly denying the suggestion
in the plaintiff's amended complaint that she had previously threatened him with retaliation if he made further sick call visits.
There is no indication in the plaintiff's medical records that he ever had a confrontation with any of the medical staff at Franklin.
(Ex. C, Dkt. No. 44-6 at 20; Ex. B, Dkt. No. 44-5 at 21-30). 5
The Declaration of Carolyn St. Denis 6 (Dkt. No. 44-13) and the disciplinary records from Franklin (Ex. G, Dkt. No. 44-10)
confirm that Nurse White's October 11, 2007 inmate misbehavior report resulted in the plaintiff being confined in his regular
room, but only until the next morning. A disciplinary hearing on October 16, 2007 resulted in a guilty disposition and imposition
of certain sanctions on the plaintiff that were never implemented. 7 On October 18, 2007, the Superintendent of Franklin granted
plaintiff's appeal, reversed the guilty finding, and vacated the sanctions. (Ex. G at 5).
At some point in this process, the plaintiff apparently showed the staff personal copies of his medical records (which apparently
were not in the files of the medical staff at Franklin), corroborating his prior accident in February 27, 2007, and some of the
subsequent medical treatment at other institutions. (Ex. G, Dkt. No. 44-10 at 5; Ex. C, Dkt. No. 44-6 at 21-22). These documents
appear in the defendant's exhibit containing plaintiff's grievance documents. (Ex. C at 20-22). In response to plaintiff's grievance,
Nurse Armstrong wrote a memorandum, indicating that there was “no documentation of [plaintiff's] previous injuries in his
chart.” (Ex. C at 20).
Although Nurse White's misbehavior report against the plaintiff was dismissed within one week, plaintiff's amended complaint
suggests that he was deterred from seeking further medical treatment for months because of fear of retaliation from Nurse White
or perhaps others on the medical staff. 8 The plaintiff was scheduled to see a doctor on December 15, 2007, but the appointment
was postponed because he was in the special housing unit (SHU) at that time, for reasons unrelated to the merits of this action.
On December 15th, a nurse in the special housing unit at Franklin saw the plaintiff, who complained of headaches. The plaintiff
said at that time that, unless the nurse could give him Percocet, she had nothing to offer him. On January 15, 2008, plaintiff,
complaining of headaches and low back pain, was examined by a doctor who prescribed Naproxen 500 mg for his discomfort
and ordered x-rays. (Armstrong Decl. ¶¶ 23-26; Ex. B at 22-23). Plaintiff was transferred to Coxsackie in February 2008; his
outgoing medical examination report from Franklin noted “chronic back pain,” but “no acute health care issues,” and reflected
a continuing prescription for Naprosyn 500 mg. 9 (Ex. B at 21).
*4 As reflected in the attachments to the amended complaint and Exhibit C to the summary judgment motion, plaintiff filed a
grievance at Franklin, complaining about denial of appropriate medical attention and alleged threats by the medical staff to deter
him from seeking further treatment. The grievance was denied by the Superintendent of the institution, and then appealed by the
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plaintiff. The decision of the Superintendent was upheld by the Central Office Review Committee (CORC) of the Department
of Corrections.
II. Summary Judgment
The amended complaint alleges that defendant White showed deliberate indifference to plaintiff's medical needs by refusing
to treat him during his visit to the urgent care center at Franklin on October 11, 2007. He also accuses Nurse White of issuing
an unfounded inmate misbehavior report on the same day, which purportedly deterred him from seeking needed medical care
for several months thereafter.
Defendant White has moved for summary judgment on the plaintiff's Eighth Amendment cause of action, arguing that there are
no material facts in dispute to support the claim that (1) the plaintiff had a serious medical need that was not met or (2) that
defendant was deliberately indifferent to any such medical need.
The defendant construes the amended complaint as alleging that the inmate misbehavior report filed by Nurse White constituted
retaliation for the exercise of his purported First Amendment right to demand necessary medical attention. 10 In support of the
summary judgment motion, the defendant argues (1) even if the misbehavior report was unfounded, the defendant received
procedural due process in the adjudication of the report; (2) it is doubtful that the First Amendment encompasses a right to
demand medical care in a prison; and (3) the misbehavior report did not constitute an “adverse action” which would deter a
similarly situated individual of ordinary firmness in seeking necessary medical attention.
Finally the defendant argues that the amended complaint should be dismissed on qualified immunity grounds because (1) even
if his claims are accepted as true, plaintiff has failed to establish that the defendant violated his constitutional rights and (2) it
was objectively reasonable for the defendant to believe that her conduct did not violate plaintiff's federally protected rights.
A. Legal Standard for Summary Judgment
Summary judgment may be granted when the moving party carries its burden of showing the absence of a genuine issue of
material fact. FED. R. CIV. P. 56; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990) (citations omitted). Ambiguities or
inferences to be drawn from the facts must be viewed in the light most favorable to the party opposing the summary judgment
motion. Id. However, when the moving party has met its burden, the nonmoving party must do more than “simply show that
there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106
S.Ct. 2505, 91 L.Ed.2d 202 (1986).
*5 In meeting its burden, the party moving for summary judgment bears the initial responsibility of informing the court of the
basis for the motion and identifying the portions of “ ‘the pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the nonmovant bears the burden of proof
at trial, the moving party may show that he is entitled to summary judgment by either (1) pointing to evidence that negates the
nonmovant's claims or (2) identifying those portions of the nonmovant's evidence that demonstrate the absence of a genuine
issue of material fact. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir.2006) (citing Celotex Corp., 477 U.S. at 323). The
second method requires the movant to identify evidentiary insufficiency, not merely to deny the opponent's pleadings. Id.
If the moving party satisfies its burden, the nonmoving party must move forward with specific facts showing that there is a
genuine issue for trial. Id. “Only disputes over facts that might affect the outcome of the suit under governing law will properly
preclude summary judgment.” Salahuddin v. Coughlin, 674 F.Supp. 1048, 1052 (S.D.N.Y.1987) (citation omitted). A dispute
about a genuine issue of material fact exists if the evidence is such that “a reasonable [fact finder] could return a verdict for
the nonmoving party.” Anderson, 477 U.S. at 248. In determining whether there is a genuine issue of material fact, all factual
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inferences must be drawn in favor of the nonmoving party. McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir.1999) (citing Nora
Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir.1998)).
In Govan v. Campbell, U.S. District Judge Gary L. Sharpe summarized the standards for evaluating summary judgment motions
involving pro se litigants:
... [I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to “formal pleadings
drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); see Estelle v. Gamble, 429
U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994) (a court is to read a pro
se party's “supporting papers liberally, and ... interpret them to raise the strongest arguments that they suggest”). Indeed, the
Second Circuit has stated that “[i]mplicit in the right to self-representation is an obligation on the part of the court to make
reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal
training.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.1983)....
This liberal standard, however, does not excuse a pro se litigant from following the procedural formalities of summary
judgment. Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, at *2 (S.D.N.Y. May 16, 2001). More specifically, Local
Rule 7.1(a) (3) of this court specifically provides that “any facts set forth in the [moving party's] Statement of Material
Facts shall be deemed admitted unless specifically controverted by the opposing party.” Local Rule 7.1(a)(3) further requires
that the “non-movant shall file a Statement of Material Fact which mirrors the movant's statement in matching numbered
paragraphs and which set forth a specific reference to the record where the material fact is alleged to arise.” The courts of the
Northern District have adhered to a strict application of Local Rule 7.1(a)(3)'s requirement on summary judgment motions.
Giguere v. Racicot, 00-CV-1178, 2002 WL 368534, at *2 (N.D.N.Y. March 1, 2002) (inter alia citing Bundy Am. Corp. v. K-
Z Rental Leasing, Inc., 00-CV-260, 2001 WL 237218, at *1 (N.D.N.Y. March 9, 2001)).
*6 Furthermore, this Circuit adheres to the view that nothing in Rule 56 imposes an obligation on the court to conduct a
search and independent review of the record to find proof of a factual dispute. Amnesty America v. Town of West Hartford,
288 F.3d 467, 470 (2d Cir.2002). As long as the local rules impose a requirement that parties provide specific record citations
in support of their statement of material facts, the court may grant summary judgment on that basis. Id. at 470-71.
Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y.2007).
In this case, although plaintiff received proper notice of his obligation to respond to defendant's motion in accordance with Local
Rules (Dkt. No. 44-1), the plaintiff did not file a statement of undisputed material facts in compliance with Local Rule 7.1(a)
(3). Consequently, the court may accept the properly supported facts contained in the defendant's Rule 7.1 statement (Dkt. No.
44-2) as true for purposes of this motion. See Govan v. Campbell, 289 F.Supp.2d at 295-96. However, the court will carefully
review the entire record in determining if there are any material facts in dispute.
B. Inadequate Medical Care
1. Legal Standards
In order to state an Eighth Amendment claim based on constitutionally inadequate medical treatment, the plaintiff must allege
“acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble, 429
U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). There are two elements to the deliberate indifference standard. Smith v.
Carpenter, 316 F.3d 178, 183-84 (2d Cir.2003). The first element is objective and measures the severity of the deprivation,
while the second element is subjective and ensures that the defendant acted with a sufficiently culpable state of mind. Id. at 184
(citing inter alia Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)).
a. Objective Element
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In order to meet the objective requirement, the alleged deprivation of adequate medical care must be “sufficiently serious.”
Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir.2006) (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128
L.Ed.2d 811 (1994)). Determining whether a deprivation is sufficiently serious also involves two inquiries. Id. The first question
is whether the plaintiff was actually deprived of adequate medical care. Id. Prison officials who act “reasonably” in response
to the inmates health risk will not be found liable under the Eighth Amendment because the official's duty is only to provide
“reasonable care.” Id. (citing Farmer, 511 U.S. at 844-47).
The second part of the objective test asks whether the purported inadequacy in the medical care is “sufficiently serious.” Id.
at 280. The court must examine how the care was inadequate and what harm the inadequacy caused or will likely cause the
plaintiff. Id . (citing Helling v. McKinney, 509 U.S. 25, 32-33, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993)). If the “unreasonable
care” consists of a failure to provide any treatment, then the court examines whether the inmate's condition itself is “sufficiently
serious.” Id. (citing Smith v. Carpenter, 316 F.3d 178, 185-86 (2d Cir.2003)). However, in cases such as this one, where the
inadequacy is in the medical treatment that was actually afforded to the inmate, the inquiry is narrower. Id. If the plaintiff is
receiving ongoing treatment, and the issue is an unreasonable delay or interruption of the treatment, then the “seriousness”
inquiry focuses on the challenged delay itself, rather than on the underlying condition alone. Id. (citing Smith, 316 F.3d at
185). Thus, the court in Salahuddin made clear that although courts speak of a “serious medical condition” as the basis for an
Eighth Amendment claim, the seriousness of the condition is only one factor in determining whether the deprivation of adequate
medical care is sufficiently serious to establish constitutional liability. Id. at 280.
b. Subjective Element
*7 The second element is subjective and asks whether the official acted with “a sufficiently culpable state of mind.” Id. (citing
Wilson v. Seiter, 501 U.S. 294, 300, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)). In order to meet the second element, plaintiff
must demonstrate more than a “negligent” failure to provide adequate medical care. Id. (citing Farmer, 511 U.S. at 835-37).
Instead, plaintiff must show that the defendant was “deliberately indifferent” to that serious medical condition. Id. Deliberate
indifference is equivalent to subjective recklessness. Id. (citing Farmer, 511 U.S. at 839-40).
In order to rise to the level of deliberate indifference, the defendant must have known of and disregarded an excessive risk to
the inmate's health or safety. Id. (citing Chance, 143 F.3d at 702). The defendant must both be aware of the facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he or she must draw that inference. Chance, 143
F.3d at 702 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)). The defendant must be
subjectively aware that his or her conduct creates the risk; however, the defendant may introduce proof that he or she knew the
underlying facts, but believed that the risk to which the facts gave rise was “insubstantial or non-existent.” Farmer, 511 U.S.
at 844. Thus, the court stated in Salahuddin that the defendant's belief that his conduct posed no risk of serious harm “need
not be sound so long as it is sincere,” and “even if objectively unreasonable, a defendant's mental state may be nonculpable.”
Salahuddin, 467 F.3d at 281.
Additionally, a plaintiff's disagreement with prescribed treatment does not rise to the level of a constitutional claim. Sonds v. St.
Barnabas Hosp. Correctional Health Services, 151 F.Supp.2d 303, 311 (S.D.N.Y.2001). Prison officials have broad discretion
in determining the nature and character of medical treatment afforded to inmates. Id. (citations omitted). An inmate does not
have the right to treatment of his choice. Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986). The fact that plaintiff might have
preferred an alternative treatment or believes that he did not get the medical attention he desired does not rise to the level of
a constitutional violation. Id.
Disagreements over medications, diagnostic techniques, forms of treatment, the need for specialists, and the timing of their
intervention implicate medical judgments and not the Eighth Amendment. Sonds, 151 F.Supp.2d at 312 (citing Estelle, 429 U.S.
at 107). Even if those medical judgments amount to negligence or malpractice, malpractice does not become a constitutional
violation simply because the plaintiff is an inmate. Id. See also Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 88 L.Ed.2d
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662 (1986) (negligence not actionable under Section 1983). Thus, any claims of malpractice, or disagreement with treatment
are not actionable under Section 1983.
2. Application of Legal Standards
a. Analysis of Purported Factual Disputes
*8 In this case, plaintiff alleges that, when he visited the urgent care center at the Franklin facility on October 11, 2007,
defendant White caused him to be “locked up” without examining him or providing him with any assistance. Defendant's
Statement Pursuant to Rule 7.1(a)(3), amply supported by the Declaration of Nurse White and her contemporaneous medical
records, negates plaintiff's claims. The record reflects that the defendant examined the plaintiff, took his vitals, reviewed his
prior medical records (which revealed that he was a frequent visitor to sick call and had a doctor's appointment pending), and
referred him for a consultation with the mental health staff before concluding that he was in no obvious distress and did not
present any medical emergency. (Dkt. No. 44-2, ¶¶ 17-24).
Particularly in light of his failure to respond to defendant's Rule 7.1(a)(3) statement, plaintiff's conclusory suggestion that Nurse
White completely refused to provide any medical attention on October 11, 2007 is insufficient to create a dispute of fact in
the face of the sworn declaration and supporting documentary evidence in the record. See Benitez v. Pecenco, 92 Civ. 7670,
1995 WL 444352 at n. 5, 1995 U.S. Dist. LEXIS 10431 (S.D.N.Y. July 27, 1995) (plaintiff's conclusory allegation that he
was never issued medication was directly contradicted by medical records and was insufficient to create a factual dispute on
that issue) (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.1983) (“mere conclusory allegations or denials are insufficient
to withstand a motion for summary judgment once the moving party has set forth a documentary case”)). 11 While plaintiff
may have disagreed with Nurse White's medical judgment as to his condition and the level of care he required, there is no
factual support for his claim that he was completely refused medical care. See Sonds, 151 F.Supp.2d at 312 (citing Estelle,
429 U.S. at 107) (disagreements over diagnostic techniques and forms of treatment implicate medical judgments and not the
Eighth Amendment).
Plaintiff claims that he was deterred from seeking medical attention at Franklin from October 11, 2007, the date Nurse White
issued an inmate misbehavior report against him for abusing emergency sick call, for several months-apparently until January
15, 2008, when he was seen by a prison doctor. He also alleged that he was warned by unnamed prison officials not to return
to the prison medical facility “or else,” and avoided seeking treatment in fear for his safety. (Dkt. No. 10-1 at 5). However,
the declarations and documents filed in support of defendant's summary judgment motion, to which plaintiff did not respond,
vitiate these conclusory allegations.
The record shows that plaintiff was seen by the medical staff at Franklin on December 15, 2007, and at that time, he essentially
refused treatment unless he was provided Percocet. Plaintiff reacted similarly on the sick call visit on October 9, 2007, when he
effectively refused Ibuprofen by threatening to ignore the directions of the medical staff by taking all of his medications at once.
(Armstrong Decl. Dkt. No. 44-12, ¶¶ 11-15, 23-24, 26; Ex. B, Dkt. No. 44-5 at 23). See Jones v. Smith, 784 F.2d 149, 151-52
(2d Cir.1986) (plaintiff's history of declining treatment by prison doctors undermined his claim that they were deliberately
indifferent in failing to treat his back issues).
*9 Plaintiff did not refute Nurse White's sworn declaration that she saw him only once (on October 11, 2007), and thus could
not have made a prior threat to him about the alleged repercussions for returning for further medical attention. Even if the court
were to accept as true plaintiff's unsupported allegations that someone threatened to retaliate against him before October 11,
2007 if he sought further treatment, this defendant cannot be liable for such conduct in which she was clearly not personally
involved. See, e.g ., Wright v. Smith, 21 F.3d 496, 501 (2d Cir.1994) (personal involvement is a prerequisite to the assessment of
damages in a section 1983 case); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir.2003). Plaintiff's conclusory and inconsistent
allegations that he was effectively deterred by conduct of the defendant from seeking all medical attention from October 11,
2007 until January 15, 2008 is insufficient to create a disputed issue of fact in light of the contrary facts stated in the defendant's
sworn declarations and supporting documents.
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b. Objective Element
As of October 11, 2007, the medical records at the Franklin regarding the plaintiff did not reflect his prior accident and related
injuries and indicated that he had a doctor's appointment pending. The medical staff who previously examined plaintiff on
several occasions did not find any objective evidence of serious problems with his back. The available records further suggested
that plaintiff would be satisfied with his treatment only if he were prescribed a more potent pain killer than the medical staff
was prepared to provide. Under those circumstances, and based on her examination of the plaintiff, there is no material issue of
fact suggesting that Nurse White unreasonably responded to his medical needs on October 11th when she concluded that (1) he
did not require further immediate treatment and (2) he had abused the facility's emergency sick call procedures. However, even
if we accept as true plaintiff's unsupported allegation that the defendant completely refused plaintiff all medical attention on
that date and deterred him from seeking needed medical attention for several months, the delay in his treatment did not involve
sufficiently serious possible negative consequences to violate his rights under the Eighth Amendment. 12
Evans v. Manos suggests how a prison inmate's claim for a delay in medical treatment should be evaluated under the Eighth
Amendment:
“Although a delay in medical care can demonstrate deliberate indifference to a prisoner's medical needs, a prisoner's Eighth
Amendment rights are violated only where ‘the delay reflects deliberate indifference to a serious risk of health or safety, to
a life-threatening or fast-degenerating condition or to some other condition of extreme pain that might be alleviated through
reasonably prompt treatment.’ ”
Evans v. Manos, 336 F.Supp.2d 255, 262 (W.D.N.Y.2004) (citations omitted). The Second Circuit has not resolved whether
actual adverse medical effects are required, as a threshold matter, to state a viable Eight Amendment claim relating to delayed
medical care; but has indicated that a plaintiff must at least show that the delay significantly increased the risk for medical injury
or similar serious adverse consequences. Smith v. Carpenter, 316 F.3d at 188-89, n. 14, n. 15. The Court in Smith also observed,
in the post-trial context, that, “although demonstrable adverse medical effects may not be required under the Eighth Amendment,
the absence of present physical injury will often be probative in assessing the risk of future harm.” Smith v. Carpenter, 316
F.3d at 188.
*10 The plaintiff's medical records document that, while at Franklin, he, at most, suffered from chronic, but not acute, lower
back pain and occasional headaches and dizziness. He was examined by the medical staff at the facility approximately seven
times between his admission in September 2007 and his discharge in February 2008, and no serious underlying medical problems
(such as degenerative disk disease) were observed or diagnosed. On at least two occasions, the plaintiff essentially refused
treatment and medication because he wanted more potent pain killers. His subjective claims of “serious pain,” unaccompanied
by substantial medical complications are not sufficient to create a factual issue as to whether he was suffering from a “serious,”
unmet medical need. Evans v. Manos, 336 F.Supp.2d at 260; Livingston v. Goord, 225 F.Supp.2d 321, 329 (W.D.N.Y.2002)
(collecting cases).
Even assuming plaintiff's conclusory and inconsistent allegations as true, notwithstanding the compelling contrary evidence in
defendant's declarations and supporting documents, his access to medical treatment was interrupted for a maximum period of
three months-between October 11, 2007 and January 15, 2008. 13 There is no evidence that this purported delay resulted in
any material change in plaintiff's condition or significantly altered his treatment. The physician who examined the plaintiff in
January 2008 ordered x-rays and prescribed Naproxen 500 mg; the more potent pain killers plaintiff sought were not prescribed.
Under these circumstances, the court finds no material fact in dispute that would support a claim that the alleged delay in the
treatment of plaintiff at Franklin caused a serious risk of medical harm or extreme pain contemplated by the Eighth Amendment.
See, e .g., Evans v. Manos, 336 F.Supp.2d at 261-62 (delay of up to six weeks to treat prisoner who claimed “extreme” back
pain, which did not result in substantial harm to plaintiff or significantly change the course of his eventual treatment, was not a
serious disruption of his medical care). See also Benitez v. Pacenco, 1995 WL 444352 at *3-*4, 1995 U.S. Dist. LEXIS 10431
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(“Given plaintiff's refusal to cooperate with his medical care, his sporadic complaints of [back] pain [with no objective evidence
that it was severe or excruciating], the extensive record of his treatment, and the complete absence of any credible evidence of a
serious medical condition, a reasonable jury could only conclude that plaintiff did not suffer from a serious medical condition.”);
Salaam v. Adams, 9:03-CV-0517, 2006 WL 2827687, at *10, 2006 U.S. Dist. LEXIS 70963 (N.D.N.Y. Sept.29, 2006) (prisoner's
sporadic and moderate complaints of lower back pain, even when considered in conjunction with prisoner's sporadic complaints
of gastrointestinal problem, were not sufficiently serious for purposes of Eighth Amendment, as a matter of law).
c. Subjective Element
As discussed above, plaintiff's conclusory suggestion that the defendant completely refused to provide him any medical attention
on October 11, 2007 is overcome by the defendant's Rule 7.1(a)(3) statement and supporting sworn declaration and documents,
which plaintiff did not rebut. Based on the information before her, Nurse White's medical judgment that the plaintiff was not
suffering from a health emergency and did not require further treatment at that time was indisputably reasonable. Other than his
bald accusations, plaintiff has not responded to the defendant's well-supported motion with any evidence backing his claim that
Nurse White acted recklessly, or that she knew of and disregarded an excessive risk to the inmate's health or safety. He has not
done anything to rebut the defendant's sworn declaration, which indicates that she had no intention to cause him serious harm or
extreme pain. See, e.g., Estelle v. Gamble, 429 U.S. at 100-101, 106-107 (inmate who alleged doctors did not credit his repeated
assertions that severe back pain should preclude him from manual labor did not state a claim for deliberate indifference where the
medical staff repeatedly saw and treated him, even if their lack of diagnosis and inadequate treatment constituted malpractice).
*11 Even if one were to accept the plaintiff's unsupported allegations that Nurse White was completely dismissive of his
complaints on October 11th, there would be no support for his claim that she acted with deliberate indifference to a serious
medical need. See, e.g., Savage v. Brue, 9:05-cv-857, 2007 WL 3047110 at *9, 2007 U.S. Dist. LEXIS 77643 (N.D.N.Y.
Oct.18, 2007) (nurse refused pain medication to an inmate confined in a special housing unit for 48 hours with no mattress
who complained of “extreme” back and neck pain due to a recent injury, and advised the inmate that he would need to “adjust
to it”; while the nurse may have been negligent in her care, she was not reckless or deliberately indifferent); Evans v. Manos,
336 F.Supp.2d at 261-62, 263 (terminating and postponing, for two more weeks, the medical appointment of a prisoner who
claimed “extreme” back pain because he complained about his care did not constitute deliberate indifference where the doctor
had no intention of doing the inmate harm).
Plaintiff's primary objection to the course of his treatment at Franklin seemed to be that the medical staff did not prescribe him
a more potent pain killer such as Percocet. As stated above, differences in opinions as to the appropriate treatment clearly do
not support a claim that “serious” medical needs were recklessly ignored. See, e.g., Evans v. Manos, 336 F.Supp.2d at 262,
263) (inmate's opinion that doctor should have prescribed something stronger than Advil and a back brace does not give rise
to an issue of fact as to whether his constitutional rights were violated); Morrison v. Mamis, 08 Civ. 4302, 2008 WL 5451639,
2008 U.S. Dist. Lexis 106416 (S.D.N.Y. Dec.18, 2008) (doctor refusing to switch prescription pain killers or allow use of Ben
Gay by an inmate complaining of back pain and migraines does not give rise to an deliberate indifference claim), Report and
Recommendation adopted by 2009 WL 2168845, 2009 U.S. Dist. Lexis 61772 (S.D.N.Y. July 20, 2009); Nelson v. Rodas,
01CIV7887, 2002 WL 31075804 at * 14-* 15, 2002 U.S. Dist. LEXIS 17389 (S.D.N.Y. Sept.17, 2002) (inmate's complaint
that the prison refused his request for a CAT scan and consultation with a specialist concerning his back spasms was not the
proper basis for an Eighth Amendment claim).
C. Retaliation
1. Legal Standards
In order to establish a claim of retaliation for the exercise of a constitutional right, plaintiff must show first, that he engaged
in constitutionally protected conduct, and second, that the conduct was a substantial motivating factor for “adverse action”
taken against him by defendants. Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003) (citing Gayle v. Gonyea, 313 F.3d 677
(2d Cir.2002); Hendricks v. Coughlin, 114 F.3d 390 (2d Cir.1997)). The court must keep in mind that claims of retaliation are
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“easily fabricated” and thus, plaintiff must set forth non-conclusory allegations. Id. (citing Dawes v. Walker, 239 F.3d 489, 491
(2d Cir.2001), overruled on other grounds, Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)).
Finally, even if plaintiff makes the appropriate showing, defendants may avoid liability if they demonstrate that they would
have taken the adverse action even in the absence of the protected conduct. Bennett, 343 F.3d at 137.
*12 The Second Circuit has defined “adverse action” in the prison context, as “retaliatory conduct ‘that would deter a similarly
situated individual of ordinary firmness from exercising ... constitutional rights.’ ” Gill v. Pidlypchak, 389 F.3d 379, 381
(2d Cir.2004) (quoting Davis v. Goord, 320 F.3d 346, 353 (2d Cir.2003), superseded by 2003 U.S.App. LEXIS 13030, 2003
WL 360053 (2d Cir. Feb. 10, 2003)) (omission in original). This objective test applies even if the plaintiff was not himself
subjectively deterred from exercising his rights. Id. 14
2. Application of Legal Standards
Defendant construes the amended complaint as alleging that her filing of an unfounded inmate misbehavior report against the
plaintiff for seeking emergency medical treatment on October 11, 2007 constituted retaliation for his exercise of the purported
First Amendment right to demand necessary medical treatment. The misbehavior report, guilty finding, and sanctions imposed
after a disciplinary hearing, were vacated a week later by the Superintendent, without comment.
As the Defendant's Memorandum of Law notes, a prison inmate has no constitutionally guaranteed immunity from being falsely
or wrongly accused of conduct which may result in the deprivation of a protected liberty interest, 15 as long as the prisoner is
provided with procedural due process. (Dkt. No. 44-14 at 6-7). Freeman v. Rideout, 808 F.2d 949, 951 (2d Cir.1986). However,
if the defendant initiated disciplinary proceedings against plaintiff in retaliation for his exercise of a constitutionally protected
right, substantive due process rights are implicated even if the plaintiff were entitled to, and did receive, full procedural due
process. Franco v. Kelly, 854 F.2d 584, 588-89 (2d Cir.1988). Any action taken by defendant in retaliation for the exercise of a
constitutional right, even if not unconstitutional in itself, states a viable constitutional claim. Id.
The court has found no Supreme Court authority as to whether the First Amendment confers upon a prisoner the right to demand
necessary medical attention and courts in the Second Circuit have not decided the issue. See, e.g., Benitez v. Pacenco, 1995
WL 444352 at *5, 1995 U.S. Dist. LEXIS 10431 (“... I do not believe that an inmate has a constitutional right to ‘repeatedly’
complain about his medical ailments ....”); Maxwell v. City of New York, 272 F.Supp.2d 285, 299-300 (S.D.N.Y.2003) (noting
the absence of conclusive Second Circuit authority and observing that an inmate's insistence that she receive medical treatment
is not “the typical protected speech most commonly considered protected”), aff'd in part, vacated in part on other grounds,
380 F.3d 106 (2d Cir.2004), opinion supplemented by 108 Fed. Appx. 10, 12 (2d Cir.2004) (agreeing with the District Court
that “even if her request for medical attention can be considered a constitutionally protected statement,” the alleged retaliatory
delays in treatment were de minimis). Cf. West v. McCaughtry, 971 F.Supp. 1272, 1277 (E.D.Wisc.1997) (in dicta: “If a prisoner
were disciplined solely because of his requests for proper medical treatment, it would surely be a constitutional violation.”)
*13 We will assume, for the purpose of the motion for summary judgment with respect to a retaliation claim, that the First
Amendment recognizes an inmate's right to demand necessary medical care or complain about inadequate care. It is unnecessary
to make this specific determination because, even assuming that a constitutional right existed, a retaliation claim fails for two
reasons. First, plaintiff did not rebut defendant's sworn statement that she filed the misbehavior report because “she concluded
that Plaintiff had abused emergency sick call,” negating any suggestion that plaintiff's constitutionally protected conduct was
the substantial motivating factor for her actions. 16 Second, it is questionable that the misbehavior report constituted an “adverse
action,” sufficient to meet the standard for retaliation.
a. Substantial Motivation
In defendant White's sworn declaration, she states that she “believed, based on my examination and observations, [that] plaintiff
was deliberately abusing the emergency sick call policy about which he was aware.” (White Decl. ¶ 9). The medical records
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support defendant White's statement. It is clear from the October 11, 2007 entry that notwithstanding plaintiff's complaints of
dizziness, he was oriented in three spheres; his blood pressure, pulse, respiratory rate, and temperature were normal, and he was
in no obvious distress. (Ex. B at 25). Nurse White further states that plaintiff was a “frequent visitor for various complaints,”
and on the medical record there is stamped language indicating that the inmate was advised of the proper procedures for sick
call and emergencies. Id.
Defendant alleges that the misbehavior report was filed for what she believed was a violation of facility rules, based upon
a medical judgment, and not in retaliation for plaintiff's medical complaints. The conclusory suggestion of retaliation by the
plaintiff is not sufficient to overcome the declaration of Nurse White and supporting documents. The record strongly supports
the position that Nurse White made a considered and sincere medical judgment that the plaintiff did not require emergency
medical attention on October 11, 2007 and that she did not harbor a “retaliatory” motivation. The Superintendent's dismissal of
the disciplinary charges, while not explained, could be attributed to the plaintiff's disclosure of medical records corroborating
his claims of a prior injury, which were not in his medical files at Franklin as of October 11th. Thus, plaintiff cannot show that
the issuance of the misbehavior report was “substantially motivated” by plaintiff's constitutionally protected conduct.
b. Adverse Action
Defendant also argues that the misbehavior report could not be considered an “adverse action.” Unfortunately, defendant's basis
for this argument, that the misbehavior report against plaintiff could not be considered an “adverse action” because it did not
actually deter him from exercising his First Amendment rights is, as noted in footnote 14 above, inconsistent with Second
Circuit authority. We have rejected plaintiff's unsupported claim that the misbehavior report, for which, ultimately, he was
confined in his cell for about 24 hours, deterred him from seeking further medical attention for several months (see Section
II. B. 2. a., above).
*14 However, the issue is not whether this plaintiff was actually deterred from seeking medical help, but whether the initiation
of such disciplinary action would have deterred an inmate “of ordinary firmness” from demanding medical attention at least
for the week or so before the Superintendent vacated the disciplinary charges. Notwithstanding the difference in the standard,
this court agrees that plaintiff did not suffer an “adverse action.
In Bartley v. Collins, 95 Civ. 10161, 2006 WL 1289256 at *7, 2006 U.S. Dist. LEXIS 28285 (S.D.N.Y. May 10, 2006), the court
held that misbehavior reports which resulted in loss of privileges, but not significant time in keeplock 17 , were de minimis and
did not constitute adverse action. Plaintiff's “full bed” restriction for one day and minor privilege restrictions are more akin to
the de minimis deprivations that have not been found to constitute adverse action. Thus, defendant's “implied” cause of action
for retaliation may be dismissed.
D. Qualified Immunity
The court also finds that even if it could somehow be determined that the defendant's actions were somehow retaliatory,
defendant would be entitled to qualified immunity in any event.
1. Legal Standards
In Delisser v. Goord, then Magistrate Judge Gary L. Sharpe summarized the legal standards regarding qualified immunity of
public employees:
Qualified immunity protects government officials who perform discretionary functions in the course of their employment.
It shields them from liability for money damages where “their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982)....
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The question of whether qualified immunity will protect a public official depends upon “ ‘the objective legal reasonableness'
of the action assessed in light of the legal rules that were ‘clearly established’ at the time it was taken.” Anderson v. Creighton,
483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987) (citations omitted). Furthermore, the contours of the right
violated must be sufficiently clear that a reasonable official might understand that his actions violate that right. Id. at 640,
107 S.Ct. at 3039; [Warren v.] Keane, 196 F.3d 330] at 332 [ (2d Cir.1999) ]. In other words, “in evaluating whether a right
was clearly established at the time a § 1983 defendant acted [the court must determine]: ‘(1) whether the right in question
was defined with “reasonable specificity”; (2) whether the decisional law of the Supreme Court and the applicable circuit
court support the existence of the right in question; and, (3) whether under pre-existing law a reasonable defendant official
would have understood that his or her acts were unlawful.’ ” African Trade & Information Center, Inc., v. Abromaitis, 294
F.3d 355, 360 (2d Cir.2002). See also, Charles W. v. Maul, 214 F.3d 350, 360 (2d Cir.2000).
*15 Delisser v. Goord, 9:02-cv-073, 2003 WL 133271 at *2, 2003 U.S. Dist. LEXIS 488 (N.D.N.Y. Jan.15, 2003)
2. Application of Legal Standards
Defendant has invoked qualified immunity with respect to the plaintiff's claim for deliberate indifference to his serious medical
needs under the Eighth Amendment, arguing that, even accepting plaintiff's allegations as true, no such constitutional violation
was established. Based on the clear findings above, the court concludes that the qualified immunity argument regarding the
Eighth Amendment claim need not be addressed.
The court will, however, address the invocation of qualified immunity by the defendant with respect to the imputed First
Amendment/retaliation claim as an additional basis for dismissal. As discussed in Section II. C. 2. above, at the time of
defendant's conduct in this case, inmates did not have a “clearly established right” under the First Amendment to demand or
complain about medical care. The Second Circuit has not decided the issue and the court has found no other Second Circuit or
Supreme Court precedent that would, with reasonable specificity, clearly support such a right. A reasonable state employee in
the defendant's position would not have understood that her acts on October 11, 2007 might have unlawfully abridged the First
Amendment rights of the defendant. Defendant White would, therefore, also be entitled to the protection of qualified immunity
with respect to a imputed retaliation claim.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that defendant White's motion for summary judgment (Dkt. No. 44) be GRANTED and the complaint
DISMISSED IN ITS ENTIRETY and it is;
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen (14) days within which to file written
objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO
THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d
85, 89 (2d Cir.1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28 U.S.C. § 636(b)
(1); FED. R. CIV. P. 6(a), 6(e), 72.
All Citations
Not Reported in F.Supp.2d, 2010 WL 985184
Footnotes
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1 Nancy Armstrong is the Nurse Administrator at Franklin and is not a defendant in this action. (Armstrong Decl., Dkt.
No. 44-12, ¶ 2).
2 In his deposition, plaintiff admits setting up sick call visits at Franklin on multiple occasions. (Ex. F., Dkt. No. 44-9 at 15,
19). (Page numbers cited for Ex. F, plaintiff's deposition are the transcript page numbers, not the numbers assigned and
printed in the CM-ECF header. Similarly, the page number for medical records in Ex. B are the page numbers printed by
the Attorney General's Office in the bottom right-hand corner, not the CM-ECF page numbers. Otherwise, page number
cited for the record those assigned in the CM-ECF header.)
3 During his September 17th visit, plaintiff advised the nurse that he had previously been provided more potent pain
killers-Tylenol 3 and Percocet. (Armstrong Decl. (refers to “Percodan”) ¶ 9; Ex. B at 27 (refers to “Percocet”)). In his
deposition, the plaintiff mentioned, at least twice, that he was prescribed Percocet and Tylenol-3 with codeine by medical
staff before he arrived at Franklin. (Ex. F., Dkt. No. 44-9 at 8, 12, 14). (According to the DailyMed website, a service
of the National Library of Medicine of the National Institutes of Health: (1) Percocet is a medication that combines
oxycodone hydrochloride and acetaminophen-see http:/ /dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?id=13307; (2)
Percodan combines the same active ingredient, oxycodone hydrochloride, with aspirin-see http://dailymed.nlm.nih.gov/
dailymed/drugInfo.cfm? id =13309.)
4 Plaintiff's amended complaint (which does not have numbered paragraphs) erroneously states that he saw Nurse White
on October 11, 2008; but his attached exhibits make clear that the relevant events started in October 2007. Several of the
dates set forth in this factual statement were not specified in the amended complaint, but were determined by reference
to other documents included in the record and do not appear to be in dispute.
5 In his deposition, plaintiff claimed that he was threatened with retaliation at one point if he made another sick call
request, but could not identify who on the medical staff made that alleged threat. (Ex. F., Dkt. No. 44-9 at 31). He also
testified that, prior to October 11, 2007, he had not experienced any problems with Nurse White or anyone else with
the Department of Corrections. (Ex. F., Dkt. No. 44-9 at 31).
6 Carolyn St. Denis is a records coordinator at Franklin. (St. Denis Decl. ¶ 1).
7 The sanctions imposed were 15 days of lost privileges of various kinds. In his deposition, plaintiff claimed that he “did
some of the 15 days” before the Superintendent reversed the decision. (Ex. F., Dkt. No. 44-9 at 26-27).
8 In the grievance report attached to the amended complaint, plaintiff alleges that he was threatened by unnamed nurses
to leave sick call “or else,” which placed him in fear for his safety. (Dkt. No. 10-1 at 5).
9 Naproxen is the generic name for a commonly-used nonsteroidal anti-inflammatory drug (NSAID). Naprosyn is one
of several brand names for Naproxen. See DailyMed website-http:// dailymed.nlm.nih.gov/dailymed/drugInfo.cfm?
id=8862# nlm34089-3.
10 The issues raised in the amended complaint relating to the filing of defendant White's inmate misbehavior report against
the plaintiff, which he claims effectively deterred him from seeking medical care for several months, could reasonably
be considered solely as part of his explicitly-stated Eighth Amendment claim. Williams v. Director of Health Services,
Dept. of Correctional Services, 542 F.Supp. 883 (S.D.N.Y.1982), cited in defendant's amended complaint, as well as
Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), considered disciplinary actions against the inmates
relating to their medical care only as part of a deliberate indifference claim. However, since the defendant construes the
amended complaint to raise a distinct First Amendment/retaliation claim, the court will address it.
11 See also Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir.2005) (“While it is undoubtedly the duty of district courts
not to weigh the credibility of the parties at the summary judgment stage, in the rare circumstance where the plaintiff
relies almost exclusively on his own testimony, much of which is contradictory and incomplete, it will be impossible
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for a district court to determine whether ‘the jury could reasonably find for the plaintiff,’ ... and thus whether there are
any “genuine” issues of material fact, without making some assessment of the plaintiff's account.” (citation omitted)).
12 In his amended complaint, plaintiff cites the Williams v. Director of Health Services, Dept. of Correctional Services,
542 F.Supp. 883 (S.D.N.Y.1982) in support of his cause of action. The court in Williams denied a defendant's motion
for summary judgment against an inmate who claimed that the Department of Corrections denied him constitutionally
adequate medical care for chronic and severe internal bleeding by (1) repeatedly transferring him from one facility
to another just as he was about to undergo treatment; (2) failing to advise the transferee prison of his medical needs;
and (3) threatening him with disciplinary sanctions for requesting medical assistance for his serious medical problem.
The instant case is factually distinguishable from Williams on many fronts: (1) plaintiff Brown's medical issues were
not serious, as compared to the severe internal bleeding from which Williams suffered; (2) while plaintiff Brown was
transferred on several occasions, his complaint focuses on the alleged inadequacy of his treatment in only one facility
over a period of, at most, three months; (3) although a few of plaintiff Brown's medical records were apparently not
transferred to Franklin, he has sued only Nurse Jerre White, not anyone who was personally involved in or responsible
for the transfer of his records from other institutions; and (4) defendant White was involved only in filing one inmate
behavior report against the plaintiff, which, as discussed elsewhere herein, did not prevent plaintiff from seeking medical
care and did not infringe his constitutional rights.
13 The court would emphasize that plaintiff's medical records clearly show that he was seen by a nurse in the SHU on
December 15, 2007, at which time, plaintiff refused any treatment unless the nurse could give him Percocet. (Ex. B at 23).
14 Defendant's Memorandum of Law cites several Second Circuit cases, outside of the prison context, which suggest that
a plaintiff must establish that alleged retaliatory conduct actually and effectively chilled his First Amendment rights to
state a § 1983 action for retaliation for the exercise of such rights. See, e.g., Curley v. Village of Suffern, 268 F.3d 65, 73
(2d Cir.2001). More recent cases such as Gill v. Pidlypchak, 389 F.3d at 381-82 make clear that the Second Circuit still
applies a strictly objective standard in prison cases, even when the alleged retaliation involves First Amendment rights.
15 In this case, the minor sanctions imposed on plaintiff implicated no protected liberty interest for which due process
protections would have been required. See Sandin v. Conner, 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)
(rejecting a claim that thirty days in segregated confinement was sufficient to create a liberty interest). Plaintiff in this
case spent a day confined to his room, and at worst, suffered a few days of restricted privileges prior to the reversal
of the discipline imposed. Because there was no liberty interest infringed, any claims of unfounded accusations would
not be actionable. Smith v. Taylor, 149 Fed. Appx. 12, 13, 2005 WL 2019547 at *1 (2d Cir.2005). In any event, in this
case, there appears to be no issue that the plaintiff received due process through the disciplinary hearing and subsequent
appeal to the superintendent. (Higgins Decl. ¶ 9 & Ex. G, Dkt. Nos. 44-3, 44-10; Plaintiff's Deposition, Ex. F, Dkt. No.
44-9 at 24-26).
16 Although defense counsel does not advance this argument in his memorandum of law, defendant While clearly includes
this statement in her sworn declaration. As this court found above, based on the information before her, Nurse White's
conclusion that plaintiff was not suffering from a medical emergency was indisputably reasonable. Accordingly, her
filing of a misbehavior report, based on a violation of the prison regulations governing emergency sick call, was also
reasonable, and, thus, not motivated by an intent to retaliate against plaintiff for the exercise of any constitutional right.
17 “Keeplock” is a form of disciplinary confinement where the inmate is confined to his own cell for the duration of the
disciplinary sanction. Gittens v. LeFevre, 891 F.2d 38, 39 (2d Cir.1989).
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Bussey v. Moore, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2025 WL 1650792
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Diamond BUSSEY, 22-B-119, Plaintiff,
v.
Shaun MOORE and Joseph Judd, Defendants.
23-CV-247 JLS(Sr)
|
Signed June 11, 2025
Attorneys and Law Firms
Diamond Bussey, Albion, NY, Pro Se.
Robert John Shoemaker, Monroe County Law Department, Rochester, NY, for Defendants.
DECISION AND ORDER
H. KENNETH SCHROEDER, JR., United States Magistrate Judge
*1 This matter was referred to the undersigned by the Hon. John L. Sinatra, in accordance with 28 U.S.C. § 636(b), for all
pretrial matters and to hear and report upon dispositive motions. Dkt. #14.
Plaintiff, Diamond Bussey, filed this pro se action seeking relief under Title 42, United States Code § 1983 claiming defendant
law enforcement officers violated his constitutional rights when they used excessive force during the course of a false arrest
on March 25, 2020. Dkt. #7.
Currently before the Court is plaintiff's motion for appointment of counsel. Dkt. #24 & Dkt. #35. In support of his motion,
plaintiff advises the Court that he requires counsel to investigate his claims and depose defendants. Dkt. #35. Plaintiff also
complains that he has limited access to the law library. Dkt. #24.
There is no constitutional right to appointed counsel in civil cases. However, under 28 U.S.C. § 1915(e), the Court may appoint
counsel to assist indigent litigants. See, e.g., Sears, Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d
Cir. 1988). Assignment of counsel in this matter is clearly within the judge's discretion. In re Martin-Trigona, 737 F.2d 1254
(2d Cir. 1984). The factors to be considered in deciding whether or not to assign counsel include the following:
1. Whether the indigent's claims seem likely to be of substance;
2. Whether the indigent is able to investigate the crucial facts concerning his claim;
3. Whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact
finder;
4. Whether the legal issues involved are complex; and
5. Whether there are any special reasons why appointment of counsel would be more likely to lead to a just determination.
Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997); see also Hodge v. Police Officers, 802 F.2d 58 (2d Cir. 1986).
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The Court must consider the issue of appointment carefully, of course, because “volunteer lawyer time is a precious commodity.”
Cooper v. A. Sargenti Co. Inc., 877 F.2d 170, 172 (2d Cir. 1989). Therefore, the Court must not allocate pro bono resources
“arbitrarily, or on the basis of the aggressiveness and tenacity of the claimant,” but should instead distribute this resource “with
reference to public benefit.” Id. Moreover, the Court must consider to the “likelihood of merit” of the underlying dispute,
Hendricks, 114 F.3d at 392; Cooper, 877 F.2d at 174, and “even though a claim may not be characterized as frivolous, counsel
should not be appointed in a case where the merits of the ... claim are thin and his chances of prevailing are therefore poor.”
Carmona v. United States Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (denying counsel on appeal where petitioner's
appeal was not frivolous but nevertheless appeared to have little merit).
This action is in its early stages, making it difficult to assess the merits of plaintiff's claim or the public benefit which could
be achieved by the appointment of counsel. Moreover, plaintiff has served detailed discovery demands relevant to his claims
and has demonstrated a capacity to clearly communicate the factual basis of his claims to the Court. Accordingly, plaintiff has
not established that the appointment of counsel is warranted at this time under the factors set forth above. It is the plaintiff's
responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654.
*2 SO ORDERED.
All Citations
Slip Copy, 2025 WL 1650792
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Butler v. Viscusi, Not Reported in F.Supp.3d (2014)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Distinguished by Anderson v. Spizziota, E.D.N.Y., February 12, 2016
2014 WL 1407262
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Keith Terrell BUTLER, Plaintiff,
v.
Sergeant Lewis V. et al., Defendants.
No. 11–CV–4844 (JFB)(WDW).
|
Signed April 11, 2014.
Attorneys and Law Firms
Keith Terrell Butler, pro se.
Jason Bassett and Richard T. Dunne of the Suffolk County Department of Law, Hauppauge, NY, for Defendants.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
*1 Pro se plaintiff Keith Terrell Butler (“Butler” or “plaintiff”) brings this action against defendants Sheriff Vincent F. DeMarco
(“DeMarco”), Sgt. Louis Viscusi (s/h/a Sgt. Lewis V.) (“Viscusi”), Thomas Sharkey (“Sharkey”), Rena Walker (s/h/a Dr.
Reena Walker) (“Walker”), and C.O. Investigator Peter Cherouvis (s/h/a Security Officer Sirusso) (“Cherouvis”) (collectively,
“defendants”), alleging violations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff claims that, while he was
incarcerated at the Suffolk County Correctional Facility (“SCCF”), Viscusi and Sharkey assaulted him on September 9, 2011;
Cherouvis threatened plaintiff after the alleged assault; Walker refused to document that plaintiff was injured during the alleged
assault; and the conditions at SCCF are unsanitary.
Defendants move for summary judgment, arguing that plaintiff failed to exhaust his administrative remedies as required by the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), and that he has no evidence with which to sustain his allegations
against DeMarco, Cherouvis, and Walker. For the following reasons, the Court concludes that plaintiff failed to exhaust his
administrative remedies, and that there are no grounds for excusing that failure. 1 Accordingly, the Court grants the defendants'
motion for summary judgment.
I. BACKGROUND
A. Factual Background
The following facts are taken from the parties' depositions, declarations, exhibits, and respective Local Rule 56.1 statements
of facts. Upon consideration of a motion for summary judgment, the Court construes the facts in the light most favorable to
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the nonmoving party. See, e.g., Capobianco v. City of New York, 422 F.3d 47, 50 n. 1 (2d Cir.2005). Unless otherwise noted,
where a party's Rule 56.1 statement is cited, that fact is undisputed or the opposing party has not pointed to any evidence in
the record to contradict it.
1. The Alleged Assault
Plaintiff entered SCCF on August 24, 2011, and was transferred to the Downstate Correctional Facility on November 8, 2011.
(Def. 56.1 ¶ 1.) The complaint revolves around an incident on September 9, 2011. (Amended Complaint, at IV.)
According to a letter from Viscusi to Internal Affairs (“IA”), on September 9, 2011, Butler allegedly said that “he couldn't live
in the 3 S/E tier and he was relocated to the E 2/N tier without incident [that day]. There was an incident that took place on
09/10/11 that involved inmate Butler, incident report was filed.” (Viscusi Internal Affairs Letter, Butler Opp. Ex. 5.) Plaintiff
claimed that he was beaten up during the move on September 9. (Interview Notes, Butler Opp. Ex. 6.) According to an Incident
Report from September 10, 2011, on that day, a tied-up sheet was obstructing Sharkey's view of Butler's cell. (Incident Report,
Butler Opp. Ex. 2.) Butler refused to comply with Sharkey's initial orders to take the sheet down, but he eventually took it down.
(Id.) As Sharkey walked away, Butler yelled, “Suck my dick.” (Id.) Sharkey reported this to Viscusi, who ordered Butler to
come to the sally port. (Id.) Butler refused. (Id.) Lieutenant Sammartino then assembled an extraction team to relocate Butler to
disciplinary housing. (Id.) According to Sammartino, the move was videotaped, and Butler was relocated without incident. (Id.)
*2 According to an IA Case Status Report from February 9, 2012, Butler claimed that he received a scratch behind his left
ear, a bruise to the upper right thigh, and back pain on September 9. (Internal Affairs Case Status Report, Butler Opp. Ex. 12.)
Investigators found no record of any incident. (Id.) Butler was seen by medical personnel on September 9, but IA concluded
that the medical records “suggest the ecchymosis [on the thigh] is an older resolving injury and the back pain is a continuous
issue.” (Id.)
2. Grievance Procedure
SCCF has a three-tiered formal grievance procedure, which is detailed in the SCCF Inmate Rules and Regulations Booklet (the
“Inmate Handbook”). (See Inmate Handbook, Declaration of Jason Bassett (“Bassett Decl.”) Ex. C.) Each inmate receives a
copy of the Handbook upon entering the facility. (See Affidavit of Matthew Bogert (“Bogert Aff.”) ¶ 3, Bassett Decl. Ex. A.)
Plaintiff received the Inmate Handbook on August 24, 2011. (Def. 56 .1 ¶ 2; see Bogert Aff. ¶ 4; Booking Sheet Receipt, Bassett
Decl. Ex. B (Butler acknowledging receipt).)
According to the three-part grievance process, an inmate with a grievance must first complain to the correctional officer located
in the inmate's cell block. 2 This grievance must be filed within five days of the incident giving rise to the grievance. If
dissatisfied with the results of the first step, the inmate may file a grievance form to be reviewed by the Housing Sergeant
assigned to an inmate's housing unit; if the issue is not there resolved, the grievance will be forwarded on to the Grievance
Coordinator for further investigation, leading to a subsequent determination. The Grievance Coordinator is required to make
a written determination within five business days. If an inmate is dissatisfied with the results of the preceding two steps, the
inmate may appeal the grievance board's determination to the Warden. If the appeal results in an unfavorable decision, the
inmate may appeal that determination to the State Commission of Correction. 3 (See SCCF Handbook, at 15–16.)
3. Plaintiff's Grievances
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SCCF's records contain no filed grievances by plaintiff alleging an attack on his person on September 9, 2011 (or another date)
by Viscusi, Sharkey, or other officers. (Bogert Aff. ¶ 6.) SCCF also has no records of any formal prisoner grievance alleging
medical neglect by Walker or any other party on September 9, 2011 (or another date); unsanitary conditions at the facility; or
a threat by Cherouvis or another individual against plaintiff's family or to place plaintiff in administrative segregation. 4 (Def.
56.1 ¶¶ 5–7.)
Plaintiff did file Grievance # R–2011–523, which was received by the Grievance Processing Unit on September 19, 2011.
(Def. 56.1 ¶ 8; see Grievance R–2011–523, Bassett Decl. Ex. D (stamped “RECEIVED” on September 19).) In that grievance,
signed on September 15, plaintiff complained that “Sergeant Ski” never gave anyone the three grievances plaintiff wrote on
September 11, and therefore, they were not on file and nowhere to be found. (Grievance Form R2011–523.) Plaintiff did not
identify the nature of his earlier grievances. (Def. 56.1 ¶ 9.) The grievance was denied on September 21, 2011, because “Inmate
Butler's grievances are being addressed and are currently on file with the Grievance Unit of the SCSO.” (R–2011–523 Denial,
Bassett Decl. Ex. E.) Plaintiff refused to sign the denial, but he never appealed it to the Warden or to the State Commission
of Correction. (Id.; Def. 56.1 ¶ 11.) Another grievance, denied on September 21, 2011, addressed mental health issues. (R–
2011–524 Denial, Butler Opp. Ex. 4.)
*3 Plaintiff attached purported grievances to his opposition. 5 The first grievance, signed on September 22, 2011, does not have
a grievance number or a “RECEIVED” stamp. (Lewis Grievance, Butler Opp. Ex. 7.) Butler complained that Viscusi, Sharkey,
and others beat him on September 9, and that Viscusi threatened to throw plaintiff down the elevator shaft. (Id.) The second
grievance, signed on September 22, 2011, also does not have a grievance number or a “RECEIVED” stamp. (Sirusso Grievance,
Butler Opp. Ex. 8.) Butler complained that Viscusi threatened Butler's family and said he would put plaintiff in administrative
segregation. (Id.) Butler also sent a letter to DeMarco on September 22, marked “Rec'd 09–27–2011,” complaining that the
grievances he gave on September 11 apparently disappeared, and that he was told he could not appeal other grievances. (Letter
to DeMarco, Butler Opp. Ex. 9.) Butler also complained that Walker refused to document that plaintiff was beaten up. (Id.)
B. Procedural Background
Plaintiff filed the original complaint on September 27, 2011, and filed the amended complaint on January 5, 2012. Defendants
answered on February 28, 2012. Following a report and recommendation by Magistrate Judge Wall, this Court dismissed the
complaint with prejudice for failure to prosecute on April 2, 2013. The Court reopened the case on May 29, 2013. Defendants
moved for summary judgment on August 30, 2013. Plaintiff opposed on November 15, 2013. Defendants replied on December
13, 2013. The Court has fully considered the submissions of the parties. not file any grievance(s) regarding any attack on his
person on September 9, 2011 (or any other date) by Sgt. Louis Viscusi, C.O. Thomas Sharkey, and/or any other Corrections
Officers (See ‘Exhibit A’, paragraph 4).”).)
II. STANDARD OF REVIEW
Pursuant to Rule 56(a), a court may grant a motion for summary judgment only if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving
party bears the burden of showing that he or she is entitled to summary judgment. Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir.2005). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular
parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The court “is not to weigh the evidence but is instead
required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable
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inferences in favor of that party, and to eschew credibility assessments.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113,
122 (2d Cir.2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir.1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (summary judgment is unwarranted if “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party”).
*4 Once the moving party has met its burden, the opposing party “must do more than simply show that there is some
metaphysical doubt as to the material facts.... [T]he nonmoving party must come forward with specific facts showing that there
is a genuine issue for trial.” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir.2002) (quoting Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As the Supreme Court stated in Anderson,
“[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” 477 U.S. at 249–
50 (citations omitted). Indeed, “the mere existence of some alleged factual dispute between the parties” alone will not defeat a
properly supported motion for summary judgment. Id. at 247–48. Thus, the nonmoving party may not rest upon mere conclusory
allegations or denials but must set forth “ ‘concrete particulars' “ showing that a trial is needed. R.G. Grp., Inc. v. Horn & Hardart
Co., 751 F.2d 69, 77 (2d Cir.1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir.1978)). Accordingly,
a party opposing summary judgment cannot “merely ... assert a conclusion without supplying supporting arguments or facts.”
BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (quoting Research Automation Corp., 585
F.2d at 33).
The Second Circuit has made clear that an inmate is not entitled to a jury trial on factual disputes regarding the failure to
exhaust administrative remedies under the PLRA. See Messa v. Goord, 652 F.3d 305, 308 (2d Cir.2011) (per curiam) (holding
that there is no “right to a jury trial on factual disputes regarding an inmate's failure to exhaust administrative remedies as
required by the PLRA”); see also Abdur–Rahman v. Terrell, No. 10–CV–3092, 2012 WL 4472119, at *5 (E.D.N.Y. Sept.25,
2012) (“Determining whether an inmate has exhausted his remedies is a threshold matter for the court to decide, even where
there is a disputed issue of fact.”).
III. DISCUSSION
Plaintiff brings his claims pursuant to 42 U.S.C. § 1983. Section 1983 “is not itself a source of substantive rights, but a method
for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it
describes.” Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). To prevail on a claim under § 1983,
a plaintiff must prove that “(1) the challenged conduct was attributable at least in part to a person who was acting under color
of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States.” Snider
v. Dylag, 188 F.3d 51, 53 (2d Cir.1999). In addition, “a plaintiff must establish a given defendant's personal involvement in the
claimed violation in order to hold that defendant liable in his individual capacity under § 1983.” Patterson v. Cnty. of Oneida,
375 F.3d 206, 229 (2d Cir.2004); see Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987) (“Absent some personal involvement by
[a defendant] in the allegedly unlawful conduct of his subordinates, he cannot be held liable under section 1983.”).
*5 Defendants move for summary judgment on the ground that plaintiff failed to exhaust his administrative remedies. In the
alternative, defendants argue that there is no evidence establishing any liability on the part of DeMarco, Cherouvis, or Walker.
As set forth below, the Court concludes that plaintiff did not exhaust his administrative remedies and he has failed to show any
grounds for excusing that failure. Thus, the Court grants summary judgment in favor of defendants without addressing their
alternative argument.
A. Failure to Exhaust
Defendants argue that plaintiff cannot raise any claims under Section 1983 because he failed to exhaust the available
administrative remedies. The Court agrees.
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1. Legal Standard
The PLRA states that “[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). “The PLRA 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.’ Prisoners must utilize the state's grievance procedures, regardless of whether the relief sought is offered through those
procedures.” Espinal v. Goord, 558 F.3d 119, 124 (2d Cir.2009) (quoting Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983,
152 L.Ed.2d 12 (2002)). “Proper exhaustion demands compliance with an agency's deadlines and other critical procedural
rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its
proceedings” Woodford v. Ngo, 548 U.S. 81, 90–91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Therefore, the exhaustion inquiry
requires a court to “look at the state prison procedures and the prisoner's grievance to determine whether the prisoner has
complied with those procedures .” Espinal, 558 F.3d at 124 (citing Jones v. Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d
798 (2007); Woodford, 548 U.S. at 88–90).
Prior to Woodford, the Second Circuit
recognized some nuances in the exhaustion requirement: (1) administrative remedies that are ostensibly
‘available’ may be unavailable as a practical matter, for instance, if the inmate has already obtained a
favorable result in administrative proceedings but has no means of enforcing that result, or if the inmate
has been deterred by intimidation; (2) similarly, if prison officials inhibit the inmate's ability to seek
administrative review, that behavior may equitably estop them from raising an exhaustion defense; (3)
imperfect exhaustion may be justified in special circumstances, for instance if the inmate complied with
his reasonable interpretation of unclear administrative regulations, or if the inmate reasonably believed
he could raise a grievance in disciplinary proceedings and gave prison officials sufficient information
to investigate the grievance.
*6 Reynoso v. Swezey, 238 F. App'x 660, 662 (2d Cir.2007) (summary order) (internal citations omitted); see also Davis v. New
York, 311 F. App'x 397, 399 (2d Cir.2009) (summary order) (citing Hemphill v. New York, 380 F.3d 680, 686, 691 (2d Cir.2004)).
Initially, it was unclear whether the above-discussed considerations would be impacted by Woodford. See, e.g., Reynoso, 238
F. App'x at 662 (“Because we agree with the district court that [plaintiff] cannot prevail on any of these grounds, we have no
occasion to decide whether Woodford has bearing on them.”); Ruggiero v. Cnty. of Orange, 467 F.3d 170, 176 (2d Cir.2006)
(“We need not determine what effect Woodford has on our case law in this area, however, because [plaintiff] could not have
prevailed even under our pre-Woodford case law.”). However, even after Woodford, the Second Circuit has continued to hold
that an inmate's failure to comply with the exhaustion requirement may be excused on these grounds. See Messa, 652 F.3d at
309 (citing the Hemphill factors).
As the Supreme Court has held, exhaustion is an affirmative defense. See Jones, 549 U.S. at 216 (“We conclude that failure to
exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion
in their complaints.”); see also Key v. Toussaint, 660 F.Supp.2d 518, 523 (S.D.N.Y.2009) (Report and Recommendation)
(“Failure to exhaust administrative remedies under the PLRA is an affirmative defense, and thus the defendants have the burden
of proving that [plaintiff's] retaliation claim has not been exhausted.” (citations omitted)).
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2. Analysis
a. Proper Exhaustion
“Proper exhaustion” requires a prisoner to use “ ‘all steps that the agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).’ “ Ruggiero, 467 F.3d at 176 (quoting Woodford, 548 U.S. at 90) (emphasis in original).
Although the level of detail necessary to properly exhaust a prison's grievance process will vary from system to system, Jones,
549 U.S. at 218, “proper exhaustion” under the PLRA “ ‘demands compliance with [that] agency's deadlines and other critical
procedural rules,’ “ Ruggiero, 467 F.3d at 176 (quoting Woodford, 548 U.S. at 90). Thus, the PLRA's exhaustion requirement is
not satisfied by “untimely or otherwise procedurally defective attempts to secure administrative remedies.” Id. (citing Woodford,
548 U.S. at 83–84); see Woodford, 548 U.S. at 95 (“For example, a prisoner wishing to bypass available administrative remedies
could simply file a late grievance without providing any reason for failing to file on time. If the prison then rejects the grievance
as untimely, the prisoner could proceed directly to federal court.... We are confident that the PLRA did not create such a toothless
scheme.”).
Plaintiff claims he filed three grievances regarding the alleged assault on September 9, 2011. None of the grievances filed,
received, and addressed by SCCF, however, mention any September 9 assault, threats by Viscusi, actions by Walker, or
unsanitary conditions at SCCF. Further, the purported grievances plaintiff attaches to his opposition are dated September
22, 2011, after the five day grievance filing deadline. There also is no evidence that plaintiff appealed any grievance to the
Warden or the State Commission of Correction, as required. Therefore, because plaintiff failed to file his grievances in a timely
fashion (if at all) in accordance with SCCF's procedures, failed to exhaust his appeals of grievances, or both, plaintiff has
failed to properly exhaust his administrative remedies. See Medina v. Nassau Cnty. Sheriff Dep't, No. 11–CV–228 (JFB)(GRB),
2013 WL 4832803, at *5 (E.D.N.Y. Sept. 10, 2013) (holding that plaintiff failed to exhaust remedies where grievances were
deemed insufficient and plaintiff failed to supply necessary information, and plaintiff otherwise failed to appeal any grievances);
Williams v. Metro. Detention Ctr., 418 F.Supp.2d 96, 101–02 (E.D.N.Y.2005) (dismissing pro se complaint where plaintiff could
only show he exhausted two steps of four-step process mandated by prison's guidelines); see also Morrison v. Stefaniak, 523
F. App'x 51, 52 (2d Cir.2013) (summary order) (upholding dismissal because plaintiff failed to appeal the Inmate Grievance
Resolution Committee's decision); Valentine v. Lindsay, No. 10–CV868 (JG)(JMA), 2011 WL 3648261, at *7 (E.D.N.Y. Aug.
17, 2011) (prisoner failed to exhaust his administrative remedies when he untimely appealed grievance).
b. Availability of Remedies
*7 The Second Circuit has stated that, if a prisoner has failed to exhaust, the Court must determine “whether administrative
remedies were in fact ‘available’ to the prisoner ... or whether the defendants' own actions inhibiting the inmate's exhaustion
of remedies may estop ... the defendants from raising the plaintiff's failure to exhaust as a defense.” Hemphill, 380 F.3d at 686
(internal citations omitted). It is clear that “[a]n administrative remedy is not ‘available,’ and therefore need not be exhausted, if
prison officials erroneously inform an inmate that the remedy does not exist or inaccurately describe the steps he needs to take to
pursue it.” Pavey v. Conley, 663 F.3d 899, 906 (7th Cir.2011) (citations omitted); see also Smith v. Woods, No. 03–CV–480, 2006
WL 1133247, at *15 (N.D.N.Y. Apr. 24, 2006) (Report and Recommendation) (“[C]ase law exists supporting the proposition
that, assuming plaintiff was instructed by prison officials, contrary to prison regulations, that he could not file a grievance,
and plaintiff indeed did not initiate the grievance process by filing that grievance in reliance on that misrepresentation, the
formal grievance proceeding required by the prison grievance system was never ‘available’ to plaintiff within the meaning of
the PLRA.” (internal alterations, citations, emphasis, and quotation marks omitted)).
Here, Butler does not show that SCCF's grievance procedure was not “available” to him due to misrepresentations by prison
officials. See Hemphill, 380 F.3d at 686. There is no evidence that Butler was told that he could not file or appeal any grievances,
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or that his complaints involved non-grievable matters. Cf. Williams v. Suffolk Cnty., No. 11–CV–5198 (JFB)(AKT), 2012 WL
6727160, at *5–6 (E.D.N.Y. Dec. 28, 2012) (officials erroneously told plaintiff that matter could not be pursued through normal
grievance process); Feliciano v. Goord, No. 97–CV–263 (DLC), 1998 WL 436358, at *2 (S.D.N.Y. July 27, 1998) (denying
motion to dismiss because, inter alia, officials told plaintiff that complaint involved non-grievable security matter). Nor has
plaintiff shown that prison officials purposefully lost the September 11 grievances in order to prevent plaintiff from timely
invoking his administrative remedies. Plaintiff also does not demonstrate that he was unaware of the appeals process, see
Ruggiero, 467 F.3d at 178 (holding that inmate had not exhausted his administrative remedies when he did not claim “that he was
unaware of the grievance procedures contained within [the Inmate Handbook] or that he did not understand those procedures”),
or that he reasonably believed pursuing a grievance would be “futile or impossible” through the introduction of evidence
regarding “prison officials' threats, beatings” or other misconduct, Kasiem v. Switz, 756 F.Supp.2d 570, 577 (S.D.N.Y.2010)
(citation and internal quotation marks omitted).
Plaintiff also does not demonstrate that special circumstances warrant excusal from the exhaustion requirement. Findings
of special circumstances have been primarily established where plaintiffs acted pursuant to reasonable interpretations of the
regulations, thus preventing exhaustion. See Ruggiero, 467 F.3d at 175 (describing “special circumstances” as “a reasonable
misunderstanding of the grievance procedures, [thereby] justify[ing] the prisoner's failure to comply with the exhaustion
requirement” (emphasis added)); Hartry v. Cnty. of Suffolk, 755 F.Supp.2d 422, 433 (E.D.N.Y.2010) ( “Among the circumstances
potentially qualifying as ‘special’ under this prong of the test is where a plaintiff's reasonable interpretation of applicable
regulations regarding the grievance process differs from that of prison officials and leads him or her to conclude that the dispute
cannot be grieved.”). No such special circumstances are present here.
*8 Instead, plaintiff argues that prison officials misplaced or destroyed his September 11 grievances. In Cruz v. DeMarco, this
Court found the inmate's allegations that his grievances “just disappeared” to be conclusory and insufficient to overcome the
PLRA's exhaustion requirement. See No. 12–cv–4277 (JFB)(GRB), 2013 WL 4719086, at *7–8 (E.D.N.Y. Sept. 3, 2013). Unlike
in Cruz, plaintiff's contention is not conclusory. He details his attempt to file grievances on September 11, states that he gave
them to Sergeant Ski, and introduces purported versions of those grievances. Plaintiff's letter to DeMarco and Grievance Form
R2011–523 also support his claim that he submitted grievances to somebody at SCCF on September 11. As a threshold matter,
plaintiff cannot rely on the copies of the grievances submitted with his opposition, because there is no record of them having
been filed with SCCF. See Harris v. Loverde, No. 08–CV–6069, 2011 WL 5080089, at *4 (W.D.N.Y. Oct.26, 2011) (declining
to rely on copy of grievance submitted with opposition because, inter alia, there was no evidence that it was ever filed). In
any event, even assuming arguendo that all those grievances were filed, the Court concludes that the alleged misplacement
or destruction of those grievances does not provide special circumstances warranting excusal from exhaustion, where plaintiff
never followed the available procedure to challenge the alleged failure to act on his grievances. In other words, although plaintiff
clearly took “some action to determine what happened with respect to the grievance [s],” Cruz, 2013 WL 4719086, at *7, he
failed to exhaust all statutory levels of appeal of those grievances even though, in his view, the grievances were misplaced
or destroyed by corrections officers. Therefore, plaintiff's assertion that his grievances were misplaced or destroyed cannot be
a basis to excuse exhaustion, and summary judgment for defendants is warranted. See, e.g., id. at *3–4 (granting defendants'
motion for summary judgment where plaintiff stated that his grievance was “misplaced” but provided insufficient evidence to
support his assertion, and plaintiff failed to follow up his complaint pursuant to procedure set out by facility); Rosado v. Fessetto,
No. 09–CV–67 (DNH/ATB), 2010 WL 3808813, at *7 (N.D.N.Y. Aug.4, 2010) (“Courts have consistently held ... that an
inmate's general claim that his grievance was lost or destroyed does not excuse his exhaustion requirement.”) (collecting cases),
report & recommendation adopted, 2010 WL 3809991 (N.D.N.Y. Sept.21, 2010); LaBombard v. Burroughs–Biron, No. 09–
CV–136, 2010 WL 2264973, at *6 (D.Vt. Apr. 30, 2010) (“[T]he lack of a response did not excuse him from moving to the next
step in the process, and eventually appealing to the Commissioner, if necessary, prior to filing suit”), report & recommendation
adopted, 2010 WL 2265004 (D.Vt. June 2, 2010); George v. Morrison, No. 06 Civ. 3188(SAS), 2007 WL 1686321, at *3
(S.D.N.Y. June 11, 2007) (“It is wellsettled ... that even when an inmate files a grievance and receives no response, he must
nevertheless properly exhaust all appeals before his grievance is considered exhausted.” (citation and internal quotation marks
omitted)); Veloz v. New York, 339 F.Supp.2d 505, 516 (S.D.N.Y.2004) (“[P]laintiff's allegation that these particular grievances
were misplaced or destroyed by correctional officers ultimately does not relieve him of the requirement to appeal these claims
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to the next level once it became clear to him that a response to his initial filing was not forthcoming.”), aff'd, 178 F. App'x 39
(2d Cir.2006); accord Martinez v. Williams, 186 F.Supp.2d 353, 357 (S.D.N.Y.2002); Waters v. Schneider, No. 01–CV–5217
(SHS), 2002 WL 727025, at *2 (S.D.N.Y. Apr.23, 2002).
*9 Accordingly, because the evidence demonstrates that plaintiff did not exhaust his administrative remedies as required by
the PLRA, and no grounds exist for excusing that failure, the Court grants defendants' motion for summary judgment for failure
to exhaust.
IV. CONCLUSION
For the foregoing reasons, the Court grants defendants' motion for summary judgment, and dismisses the amended complaint
with prejudice. 6 The Clerk of the Court shall enter judgment accordingly and close the case. The Court certifies pursuant to
28 U .S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and, therefore,
in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45, 82 S.Ct.
917, 8 L.Ed.2d 21 (1962).
SO ORDERED.
All Citations
Not Reported in F.Supp.3d, 2014 WL 1407262
Footnotes
1 Given the Court's ruling, the Court need not address defendants' alternative grounds in support of their motion.
2 According to Bogert, a Corrections Sergeant at SCCF, inmates may submit grievances by (1) handing them to an officer
or sergeant, (2) going to the law library and placing them in a box marked “Grievances,” (3) putting them in the outgoing
mailbox on their tier for forwarding by the floor sergeant, or (4) mailing them via the United States Postal Services.
(Bogert Aff. ¶ 8.)
3 Plaintiff argues that the Inmate Handbook submitted by defendants is “not the actual handbook that the institution issues
to prisoners.” (Pl. Rule 56.1 Statement ¶ 2.) Plaintiff testified, however, that he received a copy of the Handbook when
he first arrived at SCCF, and that the Handbook outlines the grievance procedure. (Butler Deposition (“Butler Dep.”) at
147:13–22, Bassett Decl. Ex. F.) Therefore, plaintiff does not raise a genuine issue of fact as to the steps in the three-
part grievance process, or his awareness of that process.
4 According to plaintiff, “[t]he living conditions are unsanitary, theirs rusted bars and paint chips falling into the food, the
showers are disscusting caked up milue & mole, the toilets are foul other inmates toxic waste come up in each others
toilet [sic].” (Amended Complaint, at IV.)
5 Defendants question the authenticity of these grievances and note that they have submitted evidence that plaintiff did
not file any grievance regarding the alleged September 9, 2011 attack. (See Defs.' Reply, at 4 (“As supposed support for
his wholly conclusory allegations, the plaintiff attached to his papers in opposition to defendants' motion for summary
judgment a Suffolk County Sheriff's Office Grievance Form (without a Grievance Number indicating it had ever been
filed) dated next to plaintiff's signature as ‘9/22/11’. Even if this Grievance was actually filed (which the Sworn Affidavit
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of Matthew Bogert—‘Exhibit A’—clearly refutes), it could not have been filed until September 22, 2011, well in excess
of the five (5) day requirement for prisoner grievances clearly laid out in the Inmate Handbook (“Exhibit C”) [ .] As
stated in defendantss [sic] original moving papers, the actual evidence conclusively establishes that plaintiff did
6 The dismissal is with prejudice because the “administrative remedies have become unavailable after the prisoner had
ample opportunity to use them and no special circumstances justified failure to exhaust.” Berry v. Kerik, 366 F.3d 85, 88
(2d Cir.2004). Plaintiff is not at SCCF, and because any appeal would be untimely, plaintiff would not be able to pursue
his administrative remedies as to the claims against these defendants. See, e.g., Davis v. Reilly, 324 F.Supp.2d 361, 366
(E.D.N.Y.2004) (“[D]ismissal of a section 1983 complaint with prejudice is proper where the prisoner failed to exhaust
administrative remedies available after a period of several months and those remedies are no longer available, partly
because of the prisoner's being transferred to another correctional facility.”).
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KeyCite Blue-Striped Flag
Appeal Filed by Dean v. Annucci, 2nd Cir., July 24, 2025
2025 WL 1811183
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
William M. DEAN, Plaintiff,
v.
Cathy Y. SHEEHAN, Deputy Commissioner and Counsel; David Debejian, Deputy Superintendent of
Programs; Pat Collver, Acting Deputy Superintendent of Programs; C.F. Leone, Director of Correctional
Library Services, NYS Doccs; Jeffrey McKoy, Deputy Commissioner of Programs, NYS Doccs, Defendants.
9:22-cv-00746 (BKS/ML)
|
Signed July 1, 2025
Attorneys and Law Firms
Plaintiff pro se: William M. Dean, 11-B-0996, Marcy Correctional Facility, P.O. Box 3600, Marcy, NY 13403
For Defendants: Letitia James, Attorney General of the State of New York, Aimee Cowan, Assistant Attorney General, 300
South State Street, Suite 300, Syracuse, NY 13202
MEMORANDUM-DECISION AND ORDER
Brenda K. Sannes, Chief U.S. District Judge
I. INTRODUCTION
*1 Plaintiff William M. Dean filed this action pro se under 42 U.S.C. § 1983 asserting claims of mail tampering and
denial of access to courts in violation of the First Amendment against Defendants Cathy Sheehan, Deputy Commissioner and
Counsel for the New York State Department of Corrections and Community Supervision (“DOCCS”), Corrine Leone, DOCCS
Supervising Librarian and Law Library Coordinator, Jeffrey McKoy, DOCCS Deputy Commissioner for Program Services,
David Debejian, Deputy Superintendent of Programs at Marcy Correctional Facility (“Marcy”), and Patrick Collver, the Acting
Deputy Superintendent of Programs at Marcy. (See generally Dkt. No. 45). On June 21, 2024, Defendants filed a motion for
summary judgment under Federal Rule of Civil Procedure 56 seeking dismissal of the Amended Complaint. (Dkt. No. 103).
The briefing on this motion has taken a tortured path.
The Court granted Plaintiff six extensions to file a response to Defendants’ motion, the last of which expired on January 31,
2025. (Dkt. Nos. 106, 109, 115, 119, 121, 130). On February 14, 2025, Plaintiff filed a 3,000-page response to Defendants’
motion for summary judgment. (See Dkt. Nos. 132, 133, 134, 135, 136, 137, 138, 140, 141, 142, 143, 144). As Plaintiff offered
no reason for the untimely filing, the Court ordered Plaintiff to show “good cause” for failing to comply with the Court's deadline
and set a briefing schedule. (Dkt. No. 139 (citing Fed. R. Civ. P. 16(b)(4))).
On February 20, 2023, prior to the completion of briefing on the order to show cause, United States Magistrate Judge Miroslav
Lovric, to whom Defendants’ motion for summary judgment had been referred, issued a Report and Recommendation that
Defendants’ motion be granted and the Amended Complaint be dismissed on the ground that Plaintiff had failed to exhaust his
administrative remedies. (Dkt. No. 145). On the understanding that the undersigned would determine the timeliness of Plaintiff's
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response, Magistrate Judge Lovric did not consider “the contents of Plaintiff's opposition for purposes of [the] Report and
Recommendation.” (Id. at 2 n.1).
On March 14, 2025, this Court issued an Order finding Plaintiff had established that there was good cause for accepting Plaintiff's
response to Defendants’ motion for summary judgment as timely, allowing Defendants the opportunity to file a reply to Plaintiff's
response, and advising the parties that it would consider Plaintiff's response in connection with the Report and Recommendation.
(Dkt. No. 151). As Plaintiff has filed objections to the Report and Recommendation, (Dkt. No. 149), and Defendants have filed
a reply, (Dkt. No. 160), this matter is, finally, fully briefed. The Court rejects the Report and Recommendation as moot in light
of the additional briefing and, for the reasons that follow, grants Defendants’ motion for summary judgment.
II. REPORT AND RECOMMENDATION
Magistrate Judge Lovric recommended that Defendants’ motion for summary judgment be granted on the ground that Plaintiff
failed to exhaust administrative remedies with respect to his remaining First Amendment mail tampering and access to the
courts claims. (Dkt. No. 145). Finding the “relevant time period for this action is July 15, 2021, when Plaintiff was transferred
from [Collins Correctional Facility] to Marcy, through November 15, 2022,” Magistrate Judge Lovric determined that the only
evidence that Plaintiff filed a grievance was his deposition testimony that “he filed a grievance on April 27, 2021,” while he
was still at Collins, (id. at 5), and found no evidence that “Plaintiff file[d] any grievances at Marcy at all,” during the relevant
time period, (id. at 6). Magistrate Judge Lovric therefore recommended that Defendants’ motion be granted “for the reasons
set forth in their memorandum of law based on Plaintiff's failure to exhaust his administrative remedies.” (Dkt. No. 145, at 25
(citing Dkt. No. 103, Attach. 1 at 11–16)). 1
*2 When evaluating Defendant's motion for summary judgment, Magistrate Judge Lovric was bound by the record before him
and unable to consider Plaintiff's response submissions. Having subsequently determined that Plaintiff's response submissions
were not untimely and having invited a reply from Defendants, the motion for summary judgment is no longer unopposed and
must be considered in light of the entire record. Accordingly, the Court rejects the Report and Recommendation as moot and
considers Defendant's motion for summary judgment de novo.
III. BACKGROUND 2
A. Collins Correctional Facility
On April 4, 2021, Plaintiff was transferred from Attica Correctional Facility to Collins Correctional Facility. (Dkt. No. 45, ¶ 1;
Dkt. No. 103-2, ¶ 5; Dkt. No. 132-3, ¶ 5). At that time, “Plaintiff had more than 18 legal actions pending in various courts.” (Dkt.
No. 103-2, ¶ 4; Dkt. No. 132-2, ¶ 4). Plaintiff states that while at Attica, he had “no problems with using the advance system
for obtaining legal copies and sending legal mail.” 3 (Dkt. No. 45, ¶¶ 172–73). Plaintiff asserts that in order “to prevent any
problems with getting legal copies made and sending legal mail,” he sent a letter to A. Schneider, the Deputy Superintendent of
Programs (“DSP Schneider”) shortly after his arrival asking what was “required” to obtain postage and photocopies, and that
on April 7 and 13, 2021, he sent “advance requests” to DSP Schneider “for $10.50” and for “$6.80 for legal copies” but that he
received no response to his inquiry or requests. (Id. ¶¶ 2–4)). DSP Schneider is not a defendant in this action.
*3 On April 17, 2021, Plaintiff sent a letter to Defendant Sheehan, DOCCS Deputy Acting Commissioner and Counsel, about
difficulties obtaining legal copies:
I have been at Collins Correctional Facility for the past two weeks and have tried to get legal copies to notify several
agencies, courts and government officials that I have moved, but have been denied access to copies.
The story and procedure changes everytime I go to the law library, and when I do what was told and nothing happens. I sent
several notices to Administration here at Collins about the issue on my first day here to establish a working relationship
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to meet both of our needs. To meet their procedures and what they wish to do to resolve any conflicts. I wrote the DSS
DSP and Superintendent, with no responses.
(Dkt. No. 133, at 3).
Plaintiff states that on April 17, 2021, DSP Schneider returned Plaintiff's “advance requests with a notice ... denying requests
for legal copies.” (Dkt. No. 45, ¶ 6). Plaintiff asserts that on April 27, 2021, he filed a grievance regarding “legal copies and
legal mail” with the “IGRC Office at Collins by facility mail as required.” (Id. ¶ 7; Dkt. No. 132–3, ¶ 6; Dkt. No. 103-5, at
80). Plaintiff further asserts that he also sent a notice that day to DSP Schneider “about legal copies and legal mail,” “quoted
the proper [DOCCS] directives such as 4421... [and] 2788” 4 and “attached a copy of the Inmate Grievance” to the notice.
(Dkt. No. 45, ¶ 7).
On or about May 4, 2021, Plaintiff received a memorandum from DSP Schneider:
I am in receipt of your April 27, 2021 letter. The requested advance and the previously unpaid advances cannot exceed
$20.00. Exceeding that amount can only be approved if you can show that the legal mail must be sent prior to your receipt
of the following week's free postage allowance due to a court rule, statute of limitations or other legal deadline.
You have failed to satisfy this requirement and your outstanding balance exceeds the $20.00 limit. Therefore, your request
is denied.
(Dkt. No. 133, at 6). DSP Schneider's memorandum did not reference any grievance.
On or about May 6, 2021, Plaintiff received a letter from Defendant DOCCS Supervising Librarian Leone in response to
Plaintiff's April 17, 2021 letter to Sheehan.” (Id. at 10). Leone advised Plaintiff to “refer” to DSP Schneider's April 27, 2021
memo if he “require[d] advance funds” for photocopies of legal matters and noted that DOCCS “Directives 4483 & 4421,
should clarify any other concerns.” (Id.).
On or about July 15, 2021, 5 Plaintiff was transferred from Collins to Marcy. (Dkt. No. 45, ¶ 24).
B. Marcy Correctional Facility
*4 Plaintiff asserts that on July 22, 2021, he sent notice to the Marcy Superintendent and Deputy Superintendent of Programs,
Defendant David Debejian (“DSP Debejian”) regarding “legal copies and legal mail as to what they needed from Dean and
what procedures they wished for Dean to follow for getting legal copies and sending legal mail, because he was indigent.” (Dkt.
No. 45, ¶ 25). Plaintiff states that on July 26, 2021, DSP Debejian responded, “telling him to do as always did and follow
directives.” (Id. ¶ 26; see id. ¶ 27 (averring that during orientation, DSP Debejian told Plaintiff to “do as he has done in prior
facilities” as “the rules apply no matter what facility he is in”)).
Plaintiff asserts on September 24, 2021, the law library supervisor returned “11 disbursement forms and advance forms” to
Plaintiff and explained that DSP Debejian was “not mailing them because Dean is indigent and over his limit and required
additional proof from the courts.” (Id. ¶¶ 36–38). In a memo dated that same day, DSP Debejian explained that he was denying
Plaintiff's requested advance for legal postage because Plaintiff's “balance of unpaid previous advances for legal mail postage
exceed[ed] $20” and “the request must include proof of a legal deadline” or “justification for the advance.” (Dkt. No. 103-23,
at 1). In his declaration DSP Debejian, states that at that time, “Plaintiff's advancements for postage totaled $975.10 and his
advances for legal copies totaled $908.56,” and that Plaintiff had not provided proof of a legal deadline demonstrating that the
mail must be sent prior to the next week's free postage allowance. (Dkt. No. 103-22, ¶ 11).
In early October 2021, Plaintiff and DSP Debejian met and discussed Plaintiff's requests for legal mail and copies. (Dkt. No.
103-25, at 1; Dkt. No. 45, ¶ 53). According to a memorandum dated October 8, 2021, during the meeting, DSP Debejian told
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Plaintiff that in order to “satisfy” Directive 4421, Plaintiff would need a “court rule, court order, statute of limitations, or other
legal deadline” showing “that the legal mail must be sent prior to receipt of the next week's free postage allowance.” (Dkt. No.
103-25, at 1). On or about October 8, 2021, and again on October 12, 2021, DSP Debejian denied Plaintiff's requests for legal
copies and advance postage for legal mail and returned Plaintiff's legal mail. (Id. (DSP Debejian denying request but advising
that he had “been in contact with counsel's office as per the directive” and that “[t]hey are aware of the situation”); Dkt. No.
45, ¶¶ 57–58).
In the Amended Complaint, Plaintiff states that on October 22, 2021, he “sent notice” to Sheehan “about problems with legal
copies and legal mail, and denied access to the courts,” (Dkt. No. 45, ¶ 60), and asserts that he continued to have difficulty
obtaining postage and photocopies in connection with his ongoing cases in November and December 2021. (Id. ¶¶ 70–75).
In December 2021, Plaintiff received the following letter from Sheehan:
Acting Commissioner Annucci has asked me to respond to your letter dated October 22, 2021, to Library Services regarding
your claims of photocopies and legal mail issues at Marcy Correctional Facility.
Concerning advances for photocopies, please be advised that the facility considers approving each advance request in
accordance with Directive No. 2788. In many instances a document required by the court can be replicated longhand.
It is recommended that when requesting assistance of any type from the facility, pertaining to a legally imposed deadline,
whether it is a court order or a statute of limitations issue, it is well-defined and understandable.
(Dkt. No. 103-26, at 1; Dkt. No. 45, ¶ 76). Sheehan referred Plaintiff to DSP Debejian's October 8, 2021, memorandum
concerning Plaintiff's “legal mail issues” and to Directive 4040, regarding available “channels of problem resolution.” (Dkt.
No. 103-26, at 1).
*5 Plaintiff asserts that on January 12 and 17, 2022, he sent requests to DSP Debejian for “132 total pages of advance legal
copies or civil filing a divorce packet with the Oneida County Supreme Court.” (Dkt. No. 45, ¶¶ 83–84). According to Plaintiff,
DSP Debejian and “Albany Counsel” denied his “divorce copies” on January 18, 2022. (Id. ¶ 85). Plaintiff avers in early March
2022, he received approval for copies and for mailing of papers for his divorce action. (Id. ¶¶ 102–05).
Plaintiff states that on January 21, 2022, he “sent notice to DSP Debejian about needing advance legal copies and legal mailing”
to comply with a February 4, 2022 deadline in an order to show cause issued by the Albany County Supreme Court. (Dkt.
No. 45, ¶ 87; Dkt. No. 103-29, at 2 (request seeking 3,224 copies and “enough legal size envelopes to mail as said copies as
required by the Court and advances for postage and such”)). DSP Debejian denied Plaintiff's request in a memorandum dated
February 1, 2022, explaining that although Plaintiff had supplied “the order to show cause as requested to prove a deadline,” a
determination could not be made “based on the order alone,” and that Plaintiff's request was therefore denied. (Dkt. No. 103-30,
at 1). DSP Debejian advised Plaintiff, however, that if he had “documents that may shed light of [sic] any rule, court order,
statute of limitation, or other legal deadline applicable to your circumstance,” he could submit them for review. (Id.).
DSP Debejian retired in May 2022, at which point, Patrick Collver assumed the role of Acting DSP. (Dkt. No. 103-22, ¶ 1; Dkt.
No. 103-13, ¶ 1). On May 4, 2022, Plaintiff “[a]dvised” DSP Collver that he “needed approval for copies 3182 pages and legal
mail advances” for an Albany County Supreme Court amended order to show cause. (Dkt. No. 45, ¶ 113). On May 10, 2022,
DSP Collver denied Plaintiff's request. (Id. ¶ 114).
On May 10, 2022, Plaintiff sent DSP Collver a request for 262 copies in connection with a complaint alleging claims under
federal civil rights statutes. (Id. ¶ 115). On May 11, 2022, Plaintiff sent a “letter/notice” to DSP Collver “about denial of copies
and mail service.” (Id. ¶ 118). That same day, Plaintiff received the following memorandum (dated May 6) from DSP Collver:
Upon consultation with Counsel's Office I am advising you of the following:
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1. I will authorize an advance for enough copies for the Order to Show Cause to be served on the Superintendent and
Acting Commissioner. I will need you to specify exactly how many pages you will need for each.
2. I will not authorize an advance for any exhibits. You will need to seek leave from the court for copies of exhibits as your
account reflects $3,822.28 of uncollected advances for legal copies.
(Dkt. No. 103-14, at 1).
Between May 20 and 27, 2022, Plaintiff sent DSP Collver requests for copies in connection with his civil rights action, legal
mail advances, and for copies of 3,640 “pages.” (Dkt. No. 45, ¶¶ 124–26; Dkt. No. 103-17, at 1).
In a June 13, 2022, letter to Erin Pfendler, the Marcy Incarcerated Grievance Program Supervisor, Plaintiff asked Pfendler “if
she could tell him as to what happen to his grievance filed in Collins on or/about April 27, 2021.” (Dkt. No. 45, ¶ 139). In
response, Pfendler advised Plaintiff to write to Collins and to “write her back” if he did not receive a response. (Id. ¶ 140).
On or about June 21, 2022, Plaintiff wrote to the Collins grievance supervisor and requested information “as to the status of a
grievance [he] filed on/or about April 27, 2021 while being at Collins C.F. it was based being denied the right to advance legal
copies and advanced legal mail.” (Dkt. No. 133, at 48). Plaintiff explained that the grievance had not “been resolved prior to
[his] leaving” and he had “not heard from anyone as to what if anything was happening to said grievance.” (Id.). Plaintiff states
that he received no response to his letter. (Dkt. No. 45, ¶ 144). On September 1, 2022, Plaintiff sent a letter to Pfendler asking
her to look into the grievance he filed at Collins. (Id. ¶ 167). On October 27, 2022, Plaintiff received a letter from Defendant
McKoy, DOCCS deputy commissioner of programs:
*6 This is in response to your letter regarding your mail.
As a result of you [sic] correspondence, Marcy Correctional Facility (CF) was contacted and Deputy Superintendent of
Programs (DSP) Fredrickson, indicated that all outgoing and incoming mail is processed in accordance with Departmental
Directive #4421, “Privileged Correspondence” and Department Directive #4422, “Incarcerated Individual Correspondence
Program”. Legal Mail advances are processed the same day they are received. DSP Fredrickson also indicated that you
were informed to stop writing extraneous information on your disbursement requests and you were also asked to put the
correct dates on your requests for advance postage, so it doesn't appear that your request are not being processed in a
timely fashion. And additional concerns regarding this matter should be addressed to DSP Fredrickson, who is in the best
position to assist you.
(Id. ¶ 171-g).
IV. MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
Under Rule 56(a), summary judgment may be granted only if all the submissions taken together “show that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of demonstrating “the absence of a genuine
issue of material fact.” Celotex, 477 U.S. at 323, 106 S.Ct. 2548. A fact is “material” if it “might affect the outcome of the
suit under the governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505; see also Jeffreys v. City of New York, 426 F.3d 549,
553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). The movant may meet this burden by showing that the
nonmoving party has “fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322, 106 S.Ct. 2548; see also Selevan v.
N.Y. Thruway Auth., 711 F.3d 253, 256 (2d Cir. 2013) (explaining that summary judgment is appropriate where the nonmoving
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party fails to “ ‘come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor on’ an
essential element of a claim” (quoting In re Omnicom Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010))).
If the moving party meets this burden, the nonmoving party must “set forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 248, 250, 106 S.Ct. 2505; see also Celotex, 477 U.S. at 323–24, 106 S.Ct. 2548; Wright v.
Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a summary judgment motion, the district court must construe the
facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences
against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003). Still, the nonmoving party
“must do more than simply show that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), and cannot rely on “mere speculation or
conjecture as to the true nature of the facts to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d
9, 12 (2d Cir. 1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)). Furthermore, “[m]ere conclusory
allegations or denials ... cannot by themselves create a genuine issue of material fact where none would otherwise exist.” Hicks
v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).
*7 Where the plaintiff proceeds pro se, the Court must read his submissions liberally and interpret them “to raise the strongest
arguments that they suggest.” McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994)). However, a pro se party's “ ‘bald assertion,’ completely unsupported by evidence, is not sufficient to
overcome a motion for summary judgment.” Jordan v. New York, 773 F. Supp. 2d 255, 268 (N.D.N.Y. 2011) (citing Carey v.
Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)); see also Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011).
B. Analysis
1. Relevant Time Period
Defendants assert that the relevant time period for this case is July 15, 2021, the date Plaintiff was transferred from Collins to
Marcy, through November 15, 2022, the date Plaintiff filed the Amended Complaint, and thus solely concerns the denial of legal
copies and postage advances for legal mail that Plaintiff allegedly experienced while at Marcy—but not at Collins. (Dkt. No.
103-2, ¶¶ 1, 3). Plaintiff disputes this and maintains the alleged violations began on or about April 4, 2021, while he was confined
at Collins, continued at Marcy, then at Mid-State Correctional Facility, and continue to the present. (Dkt. No. 132-3, ¶¶ 1, 3).
The principal “evidence” Defendants rely on in support of their contention that the Amended Complaint “alleges wrongdoing
associated with the conditions of his confinement at Marcy, not Collins,” is this Court's March 2, 2023 Decision and Order
(“March 2023 Order”) reviewing the Amended Complaint under 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). (Dkt.
No. 103-2, ¶ 1 (citing Dkt. No. 44, at 6)). 6 On page 6 of the March 2023 Order, the Court provided an “Overview of the
Amended Complaint,” and introduced it as follows: “As with the original complaint, plaintiff's amended and supplemental
complaint alleges wrongdoing associated with the conditions of his confinement at Marcy C.F., and reasserts Section 1983
claims against the same ... defendants.” (Dkt. No. 44, at 6). Although this sentence unfortunately omits Collins, read in context
and with reference to the Amended Complaint, it is evident this omission was a simple oversight. Not only do the defendants
it refers to include Sheehan and Leone, whose involvement, according to Plaintiff, began while he was at Collins, but the next
sentence expressly notes that the Amended Complaint “includes each of the allegations set forth in the original complaint,” (id.
at 6–7 (emphasis added)), which the Court previously described as containing “allegations of wrongdoing during [Plaintiff's]
incarceration at Collins ... and Marcy,” (Dkt. No. 10, at 4). The Court therefore concludes that the omission of Collins from the
March 2023 Order was, at most, a clerical omission and by no means a preclusive finding regarding the relevant time period
for this case.
More importantly, as even a cursory review reveals, the claims in the Amended Complaint are centered on Plaintiff's efforts to
obtain legal copies and postage advances for legal mail at both Collins and Marcy. (See generally Dkt. No. 45). Closer inspection
shows that it refers to Collins more than forty times and that its “Statement of Facts” begins with Plaintiff's transfer from Attica
Correctional Facility to Collins on or about April 4, 2021. (Id. at 25).
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*8 Defendants’ reliance on Plaintiff's deposition does not support their position as to the relevant time period, either. In the
section of the deposition that Defendants cite, defense counsel says: “I'm going to go through each of the defendants” and
“I'm going to have you tell me what role they played in denying your access to the courts.” (Dkt. No. 103-5, at 29–30). When
defense counsel asks Plaintiff whether he has any claims about Defendant Debejian, who is employed at Marcy, “with respect
to your time at Collins,” Plaintiff responds: “No, he wasn't here, correct ... As a matter of fact, there's nobody in here claims
against Collins listed as a defendant.” (Id. at 30). This is correct—the defendants in this case include three DOCCS officials
(Sheehan, Leone, and McKoy) and two Marcy employees (Debejian and Collver), but no Collins employees. (Dkt. No. 45).
However, defense counsel next asks Plaintiff about Defendant Sheehan and whether Plaintiff has “any claims with respect to
access to courts for your time at Collins.” (Dkt. No. 103-5, at 31). Plaintiff responds, in relevant part: “Its going to be in the
numbered section” of the Amended Complaint, “April 4, ‘21, I see April 9th also. Cathy Sheehan, yes, April 17th, 2021, I sent
her notice.” (Id.). As Plaintiff's interaction with Sheehan, according to the Amended Complaint, began while he was at Collins,
Defendants’ reliance on Plaintiff's deposition also proves unavailing.
The Court therefore concludes that Plaintiff has shown that the relevant time period began on or about April 4, 2021, when he
was transferred to Collins. (Dkt. No. 45, at 156); see, e.g., PH Int'l Trading Corp. v. Nordstrom, Inc., No. 07-cv-10680, 2011
WL 13557658, at *2, 2011 U.S. Dist. LEXIS 175934, at *4 (S.D.N.Y. Oct. 5, 2011) (looking to the allegations in the complaint
regarding the date the parties’ relationship began and the time of the alleged breach in order to determine relevant time period
for purposes of discovery); Schiavone v. Ne. Utils. Serv. Co., No. 08-cv-429, 2009 WL 801744, at *1, 2009 U.S. Dist. LEXIS
24517, at *3–4 (D. Conn. Mar. 25, 2009) (same). However, the Court agrees that the time period ends on November 15, 2022,
the date the Amended Complaint was signed, (Dkt. No. 45, at 156), as there was no supplemental pleading filed in this case.
2. Personal Involvement – Collins
Having concluded that the relevant time period in this case began when Plaintiff was transferred to Collins, the Court considers
Defendants’ argument that there is no evidence that Sheehan or Leone, the only two named Defendants who had any interaction
with Plaintiff while he was at Collins, were personally involved in interfering with Plaintiff's legal mail or in denying Plaintiff
access to the Courts. (Dkt. No. 103-1, at 16–20, 28–29). Plaintiff opposes Defendants’ motion. (Dkt. No. 132-4, at 36–42).
It is well-settled that, 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) (citations omitted). A plaintiff must “allege a tangible connection between the acts of a defendant and the injuries
suffered.” Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). There is “no special rule for supervisory liability,” and “a plaintiff
must plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the
Constitution.’ ” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 676, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)). The Second Circuit has explained that “[t]he factors necessary to establish a [§ 1983]
violation will vary with the constitutional provision at issue because the elements of different constitutional violations vary,”
and “[t]he violation must be established against the supervisory official directly.” Id. (second alteration in original) (internal
quotations and citations omitted).
a. Mail Tampering (Interference with Legal Mail)
“[A] prisoner's right to the free flow of incoming and outgoing mail is protected by the First Amendment” Bacon v. Phelps,
961 F.3d 533, 543 (2d Cir. 2020) (internal citations omitted). As the Second Circuit has explained, this right is violated if a
prison “regularly and unjustifiably” interferes with an incarcerated individual's legal mail. Ahlers v. Rabinowitz, 684 F.3d 53,
64 (2d Cir. 2012) (quoting Davis v. Goord, 320 F.3d 346, 351 (2003)). Unconstitutional interference with mail occurs when, for
example, prison officials engage in “an ongoing practice of unjustified censorship” or delay the delivery of mail to a prisoner
in a way that “cause[s] him to miss court deadlines or in any way prejudice[s] his legal actions.” Davis, 320 F.3d at 352.
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b. Denial of Access to Courts
*9 The First Amendment right to petition the government, which applies to the states through the Fourteenth Amendment,
“extends to all departments of the Government, including the Courts.” Friedman v. Bloomberg L.P., 884 F.3d 83, 90 (2d Cir.
2017) (citation omitted). “A plaintiff's constitutional right of access to the courts is violated where government officials obstruct
legitimate efforts to seek judicial redress.” Id. (citation and internal quotation marks omitted). Circuit Courts of Appeals have
“recognized two variants of right-of-access claims”: (1) “forward-looking suits,” in which plaintiffs allege that “ ‘systemic
official action’ frustrated their ability to file a suit,” and (2) “backward-looking” claims “covering suits that ‘cannot now be
tried (or tried with all material evidence), no matter what official action may be in the future.’ ” Sousa v. Marquez, 702 F.3d 124,
127–28 (2d Cir. 2012) (citation omitted). A plaintiff may have a backward-looking right-of-access claim, for example, where
the official action “caused the loss or inadequate settlement of a meritorious case.” Id. at 128.
Moreover, the Second Circuit has not recognized the viability of backward-looking right-of-access claims. See id. (noting that
the “viability of backward-looking right-of-access claims is far from clear in this Circuit” and declining to decide the issue); Kern
v. Contento, No. 21-cv-1672, 2022 WL 1112767, at *3, 2022 U.S. App. LEXIS 10073, at *7 (2d Cir. Apr. 14, 2022) (summary
order) (noting that Sousa “declined to decide whether to follow other circuits in recognizing a backward-looking claim”).
c. Sheehan and Leone
As discussed above, the only named Defendants with any connection to Plaintiff's difficulties obtaining copies and advance
legal postage while he was at Collins, are two DOCCS officials: Sheehan and Leone. 7 Viewed in the light most favorable to
Plaintiff, the evidence of their involvement at this time is: (1) Plaintiff's April 17, 2021 letter to Sheehan reporting that he “not
receiving photocopies of legal material and legal cases from the Law Library at Collins,” (Dkt. No. 133, at 3); and (2) Leone's
May 6, 2021 response (on Sheehan's behalf), (id. at 10). To the extent Plaintiff asserts claims of mail tampering and denial of
access to the courts against Sheehan arising from her referral of Plaintiff's April 17, 2021, letter to Leone for response, he has
failed to present evidence from which a factfinder could find Sheehan personally involved. See Vega v. Artus, 610 F. Supp. 2d
185, 199 (N.D.N.Y. 2009) (stating that facility superintendent's act of “referring [the plaintiff's] letters to staff for investigation
is not sufficient to establish [his] personal involvement”); Viera v. Sheahan, 531 F. Supp. 3d 666, 672 (W.D.N.Y. 2021) (finding
that the defendant's “receipt” of the plaintiff's “letter and referral of the matter to a subordinate does not establish his personal
involvement in the alleged failure to process Plaintiff's mail”). And, although an official's response to a letter may constitute
evidence of personal involvement, see, e.g., Young v. Choinski, 15 F. Supp. 3d 172, 191 (D. Conn. 2014) (“[W]hen a supervisory
prison official receives a particular grievance, personally reviews it, and responds and/or takes action in response, such conduct
may constitute sufficient ‘personal involvement’ to establish individual liability for the alleged constitutional violation.”), the
Court concludes that Leone's May 6, 2021 letter responding on Sheehan's behalf, (Dkt. No. 133, at 10), fails to raise an issue
of fact as to any involvement by Leone in interfering with legal mail or denying Plaintiff access to the courts.
*10 In his April 17, 2021, letter to Sheehan, Plaintiff explained that he needed to “notify 63” different “agencies, courts
and government officials that [he has] moved” from Attica to Collins,, but that Collins has “denied access to copies,” that the
“procedure changes” each time he goes to the library, and that the DSP and Superintendent had not responded to his inquiries.
(Dkt. No. 133, at 3). Plaintiff also wrote that he was having a “problem with obtaining legal copies and cases as need to
work on [his] several legal matters.” (Id.). In her response on Sheehan's behalf, Leone noted Plaintiff's claim of “not receiving
photocopies of legal materials and legal cases” from the Collins law library, referred Plaintiff to DSP Schneider's April 27, 2021
memo 8 should he require advance funds and to DOCCS “Directives 4483 & 4421” if he had “any other concerns,” advised
Plaintiff that a letter to DOCCS “Central Office staff” did not replace a facility's “problem resolution channels,” and encouraged
Plaintiff to use the grievance process. (Id. at 10).
Although it is undisputed that Plaintiff was litigating 18 cases during the relevant time period, Plaintiff does not cite any specific
case in connection with denial of legal copies (the subject of his letter to Sheehan and Leone's response) while at Collins.
There is evidence that on May 25, 2021, DSP Schneider denied Plaintiff's May 17, 2021 request for an advance on postage
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for documents Plaintiff sought in connection with an “Order to Show Cause” issued by the Monroe County Supreme Court,
in an Article 78 proceeding where Plaintiff was “seeking to compel” the Monroe County Sheriff to comply with a Freedom of
Information Law request. (Dkt. No. 134-1, at 1, 73 (Dean v. Baxter, Monroe County Sheriff, filed in Monroe County Supreme
Court, Index No. 2021-537); Dkt. No. 45, ¶¶ 12–13). Although there is evidence that DSP Schneider also denied other requests
regarding legal copies or mail, (see Dkt. No. 133, at 8 (May 4, 2021 memorandum regarding “Legal Copies” and denying
“requested advance”); id. at 14 (May 24, 2021 memorandum regarding “Legal Copies” and denying request for “advances for
legal mail”)), nothing in the record ties those requests to any of the cases Plaintiff was litigating at that time or to conduct
by Leone. Thus, no reasonable factfinder could conclude that Leone, in responding to Plaintiff's letter regarding difficulties
obtaining legal copies, was personally involved in interfering with Plaintiff's legal mail or obstructing Plaintiff's access to the
courts in connection with his Monroe County Article 78 proceeding or any other case. 9 Accordingly, Defendants Sheehan and
Leone are dismissed for lack of personal involvement.
3. Exhaustion of Administrative Remedies
Defendants move for summary judgment on the ground that Plaintiff failed to exhaust his administrative remedies prior to filing
this action, as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a). (Dkt. No. 103-1, at 11–16). In
support of their motion, Defendants have filed declarations by Joshua Becker and Erin Pfendler, the Incarcerated Grievance
Program Supervisors (“IGPS”) at Collins and Marcy, respectively. (Dkt. Nos. 103-11, 103-31). Both Becker and Pfendler state
that during the relevant time period, Plaintiff filed no “grievances at all.” (Dkt. No. 103-11, ¶ 8; Dkt. No. 103-31, ¶ 8). Plaintiff
responds that he “filed numerous grievances that never went anywhere” and argues that his reports to DOCCS and other state
officials regarding his problems with legal copies and legal mail satisfy the PLRA's exhaustion requirement. (Dkt. No. 132-4,
at 14–16). Plaintiff also argues that there “is no working grievance system in Collins or Marcy.” (Id. at 14–15).
*11 The PLRA prescribes limitations on an inmate's ability to bring civil actions with respect to prison conditions. Specifically,
the PLRA provides that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies
as are available are exhausted.” 42 U.S.C. § 1997e(a). This 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.” Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (quoting Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152
L.Ed.2d 12 (2002)), abrogated on other grounds by Ross v. Blake, 578 U.S. 632, 639–42, 136 S.Ct. 1850, 195 L.Ed.2d 117
(2016).
Proper exhaustion of administrative remedies is dependent on the rules and regulations of the prison in which the grievance is
filed; that is, an inmate of a New York State DOCCS facility must satisfy the requirements, including procedural and substantive
requirements, set forth by DOCCS regulations to properly exhaust administrative remedies. See Garcia v. Heath, 74 F.4th 44,
46 (2d Cir. 2023); see also Hayes v. Dahlke, 976 F.3d 259, 268 (2d Cir. 2020) (“[I]t is the prison's requirements, and not the
PLRA, that define the boundaries of proper exhaustion.” (alteration in original) (quoting Jones v. Bock, 549 U.S. 199, 218, 127
S.Ct. 910, 166 L.Ed.2d 798 (2007))).
Failure to exhaust available administrative remedies is an affirmative defense that must be raised by the defendants. See Jones,
549 U.S. at 216, 127 S.Ct. 910. Therefore, the defendants “bear the initial burden of establishing the affirmative defense of non-
exhaustion ‘by pointing to “legally sufficient sources” such as statutes, regulations, or grievance procedures’ which demonstrate
that ‘a grievance process exists and applies to the underlying dispute.’ ” Williams v. Correction Officer Priatno, 829 F.3d 118,
126 n.6 (2d Cir. 2016) (quoting Hubbs v. Suffolk Cnty. Sheriff's Dep't, 788 F.3d 54, 59 (2d Cir. 2015)). “If the defendants meet
this initial burden, administrative remedies may nonetheless be deemed unavailable if the plaintiff can demonstrate that other
factors ... rendered a nominally available procedure unavailable as a matter of fact.” Hubbs, 788 F.3d at 59 (citing Hemphill v.
New York, 380 F.3d 680, 687–88 (2d Cir. 2004), abrogated on other grounds by Ross, 578 U.S. at 639–42, 136 S.Ct. 1850).
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Under DOCCS regulations, an inmate must generally submit a grievance within twenty-one days of an alleged occurrence, see
N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(1), but may request an extension within forty-five days of the alleged occurrence,
see id. § 701.6(g)(1)(i)(a). An inmate's grievance “should contain a concise, specific description of the problem and the action
requested.” Id. § 701.5(a)(2). This requirement, the Second Circuit has held, is analogous to the requirements of notice pleading.
See Brownell v. Krom, 446 F.3d 305, 310 (2d Cir. 2006); see also Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (“The
PLRA's exhaustion requirement is ... is not dissimilar to the rules of notice pleading.”). “As in a notice pleading system, the
grievant need not lay out the facts, articulate legal theories, or demand particular relief[;] [a]ll the grievance need do is object
intelligibly to some asserted shortcoming.” Johnson, 380 F.3d at 697 (citing Strong v. David, 297 F.3d 646, 650 (7th Cir. 2002)).
Subsequent procedural exhaustion of a filed grievance then involves three steps: (1) the grievance is reviewed and resolved
by the Inmate Grievance Resolution Committee (“IGRC”), N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(b); (2) the grievant
appeals an adverse decision of the IGRC to the superintendent of the facility at which the grievance was filed, id. § 701.5(c);
and (3) the grievant appeals an adverse decision of the superintendent to the Central Office Review Committee (“CORC”), id. §
701.5(d). 10 Upon the rendering of CORC's decision, or if CORC fails to respond to a grievance within thirty days of its appeal
under the third step of the process, the grievant has exhausted administrative remedies. See Hayes, 976 F.3d at 269–70.
*12 “Under the PLRA, a prisoner need exhaust only ‘available’ administrative remedies.” Ross, 578 U.S. at 638, 136 S.Ct.
1850. The Supreme Court in Ross v. Blake identified, inexhaustively, see Williams, 829 F.3d at 123 n.2, “three kinds of
circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief.” Ross,
578 U.S. at 643, 136 S.Ct. 1850. “First, an administrative remedy may be unavailable when ‘it operates as a simple dead end—
with officers unable or consistently unwilling to provide any relief to aggrieved inmates.’ ” Williams, 829 F.3d at 123 (quoting
Ross, 578 U.S. at 643, 136 S.Ct. 1850). “Second, ‘an administrative scheme might be so opaque that it becomes, practically
speaking, incapable of use.’ ” Id. (quoting Ross, 578 U.S. at 643, 136 S.Ct. 1850). “Third, an administrative remedy may be
unavailable ‘when prison administrators thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.’ ” Id. at 124 (quoting Ross, 578 U.S. at 644, 136 S.Ct. 1850).
Here, Defendants have established that the grievance procedures contemplated by DOCCS regulations applied to inmates at
Collins and Marcy. 11 (Dkt. No. 103-2, ¶¶ 12–14; Dkt. No. 103-11, ¶ 5). The question before the Court, then, is whether Plaintiff
has raised a material issue of fact as to (1) whether he exhausted these administrative remedies, and (2) if he did not, whether
the remedies were available to Plaintiff within the meaning established by Ross and Williams.
a. Alleged Grievances at Collins
i. April 27, 2021 Grievance and Exhaustion Based on Continuing Violation
Although there are no named defendants that could be held responsible for the alleged constitutional violations at Collins, the
Court has considered Plaintiff's allegation of having filed an April 27, 2021 grievance at Collins in order to assess whether there
was a grievance that could support exhaustion based on a continuing violation.
Plaintiff asserts that he filed a grievance on April 27, 2021, at Collins “about being denied to make legal copies and send legal
mail.” (Dkt. No. 133, at 46). At his deposition, Plaintiff stated that he had a “copy of the grievance,” (Dkt. No. 103-5, at 81–82),
but there is no copy of the grievance in the record before the Court. According to the verified amended complaint, Plaintiff filed
this “Inmate Grievance” on April 27, 2021, “with the IGRC Office at Collins by facility mail as required,” 12 (Dkt. No. 45, ¶ 7;
see also Dkt. No. 103-5, at 80 (testifying that on April 27, 2021, he “filled the grievance out and put it in the mailbox address
to IGRC”)), but never received any response, (Dkt. No. 45, ¶ 7). Also, according to the verified Amended Complaint, on April
27, 2021, Plaintiff “sent a follow up notice to DSP Schneider about legal copies and legal mail ... and attached a copy of the
Inmate Grievance filed,” (Dkt. No. 45, ¶ 7; but see Dkt. No. 133, at 6 (DSP Schneider's response acknowledging his receipt of
Plaintiff's April 27 letter does not refer to the grievance that purportedly accompanied the letter)).
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Plaintiff has also adduced some evidence that he followed up on the grievance. Plaintiff testified that he subsequently wrote
to the “superintendent at Collins, didn't get a response” and “filed an appeal with the superintendent at Collins, didn't get a
response” and that he undertook these actions “in ’21.” 13 (Dkt. No. 103-5, at 80–81). In a letter dated June 13, 2022, more than
a year after purportedly filing the grievance, Plaintiff sent a letter to Pfendler, the Marcy grievance supervisor, inquiring into
“the status of a grievance [he] filed on or about April 27, 2021 at Collins Correctional Facility, about being denied to make legal
copies and send legal mail.” (Dkt. No. 133, at 46). On Pfendler's recommendation, (id. at 47), Plaintiff sent a letter to the Collins
Grievance Supervisor, “requesting information as to the status of a grievance [he] filed on/or about April 27, 2021 while” at
Collins and described the grievance as “based [sic] being denied the right to advance legal copies and advanced legal mail,” (id.
at 48 (letter dated June 21, 2022)). On September 1, 2022, Plaintiff notified Pfendler that he had not received a response from
Collins and inquired how to proceed. (Dkt. No. 133, at 49). On June 15, 2023, Plaintiff testified that he “recently” sent a letter
to the Central Office Review Committee regarding the April 27, 2021 grievance. (Dkt. No. 103-5, at 82).
*13 Defendants dispute Plaintiff's assertion that he filed a grievance on April 27, 2021, or at any other time while he was at
Collins. In a declaration, Becker, the Collins Grievance Program Supervisor states that Collins has no record of this grievance
and that Plaintiff filed no grievances “while incarcerated at Collins from April 2021 through July 2021.” (Dkt. No. 103-11, ¶
8). In addition, none of the memoranda issued by DSP Schneider following Plaintiff's purported filing of the grievance (and
sending a copy to DSP Schneider) references a grievance. (Dkt. No. 133, at 6, 8, 14, 39).
In Williams v. Correction Officer Priatno, the Second Circuit found that when a grievance is delivered by an inmate in a Special
Housing Unit to a correction officer for filing and that grievance is never subsequently filed or answered, DOCCS “regulations
do not adequately outline the process to appeal or otherwise exhaust administrative remedies.” 829 F.3d at 124. “On their face,”
the Second Circuit held, “the regulations only contemplate appeals of grievances that were actually filed.” Id. And under the
circumstances in that case, “the grievance procedures that were technically available to [the plaintiff] so opaque and confusing
that they were, ‘practically speaking, incapable of use,’ ” and therefore, “in giving his grievance to the correction officer, [the
plaintiff] exhausted all administrative remedies that were available to him.” Id. at 126 (quoting Ross, 578 U.S. at 643, 136
S.Ct. 1850).
However, “mere contentions or speculation” regarding mishandling of a grievance “do not create a genuine issue of material
fact when there is no evidence to support the allegations.” Jackson v. Moore, No. 21-cv-1001, 2023 WL 4710869, at *6, 2023
U.S. Dist. LEXIS 65814, at *15 (N.D.N.Y. Apr. 14, 2023) (quoting Rodriguez v. Cross, No. 15-cv-1079, 2017 WL 2791063, at
*7, 2017 U.S. Dist. LEXIS 71337, at *19 (N.D.N.Y. May 9, 2017)), report and recommendation adopted, 2023 WL 4711091,
2023 U.S. Dist. LEXIS 126588 (N.D.N.Y. July 24, 2023)). Rather, a plaintiff must provide some corroboration of a claim that
a grievance was submitted, such as evidence demonstrating when the grievance was written, the content of the grievance, how
the plaintiff attempted to file the grievance, or that the plaintiff followed up with prison officials on the disposition of the
grievance. See Simpson v. Price, No. 19-cv-1413, 2022 WL 336540, at *3, 2022 U.S. Dist. LEXIS 20857, at *7–8 (N.D.N.Y.
Feb. 4, 2022); see also Stephanski v. Allen, No. 18-cv-76, 2020 WL 806331, at *9, 2020 U.S. Dist. LEXIS 11028, at *22–25
(N.D.N.Y. Jan. 22, 2020) (“Although [the plaintiff] fails to proffer copies of the grievance(s) he attempted to file ..., his claims
are supported by evidence suggesting that he attempted to file a grievance ... including: (1) [the plaintiff]’s deposition testimony;
(2) [the plaintiff]’s letter to the ... Grievance Committee; (3) [the plaintiff]’s letter to [a grievance supervisor]; (4) [a subsequent
grievance]; and (5) [the plaintiff]’s Appeal Statement referring the Superintendent's decision to CORC for review.”), report and
recommendation adopted, 2020 WL 777268, 2020 U.S. Dist. LEXIS 26918 (N.D.N.Y. Feb. 18, 2020).
As discussed, although Plaintiff does not name any Collins staff members as defendants in this case, he has sued the two DOCCS
officials with whom he corresponded while at Collins: Sheehan, DOCCS Deputy Commissioner and Counsel; and Leone,
DOCCS Supervising Librarian and Law Library Coordinator. Plaintiff could not recall who, if anyone, he named in the April
27 grievance, but “[t]he New York IGP regulations do not state that a prisoner's grievance must name the responsible party.”
See Espinal v. Goord, 558 F.3d 119, 126 (2d Cir. 2009). “[T]he IGP regulations offer the general guidance that a grievance
should ‘contain a concise, specific description of the problem,’ and the complaint form does not instruct the inmate to name
the officials allegedly responsible for misconduct.” Id. (citing N.Y. Comp. Codes R. & Regs., tit. 7, § 701.7(a)(1)(i)); see also
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White v. Williams, No. 9:12-cv-1775, 2016 WL 4006461, at *5, 2016 U.S. Dist. LEXIS 81972, at *13 (N.D.N.Y. June 22, 2016)
(“[I]nsofar as Plaintiff's supervisory claims relate to underlying conduct that was the subject of a fully exhausted grievance
process, a separate grievance detailing the supervisory liability, or specifically naming the supervisors, is not a prerequisite
to suit.”), report and recommendation adopted, 2016 WL 4005849, 2016 U.S. Dist. LEXIS 96337 (N.D.N.Y. July 25, 2016);
Jones, 549 U.S. at 217, 127 S.Ct. 910 (“[N]othing in the PLRA statute imposes a ‘name all the defendants’ requirement.”);
Johnson v. Johnson, 385 F.3d 503, 522 (5th Cir. 2004) (“[W]e are mindful that the primary purpose of a grievance is to alert
prison officials to a problem, not to provide personal notice to a particular official that he may be sued.”).
*14 Here, even assuming that Plaintiff satisfied his burden with respect to an April 27 grievance about “being denied to make
legal copies and send legal mail,” Plaintiff has not shown that this falls within the exception the Second Circuit identified in
Johnson v. Killian, pursuant to which a prior grievance might serve to exhaust “administrative remedies with respect to [a]
continuing violation” of constitutional rights. 680 F.3d 234, 239 (2d Cir. 2012). In Johnson, the plaintiff filed and exhausted a
grievance “concerning limitations on congregational prayer” at a Federal Correctional Institution in Otisville, New York. 680
F.3d at 236. The plaintiff's religious beliefs required congregational prayer five times a day, but the Otisville policy provided
the prison chapel only once a day. Id. After the plaintiff exhausted his grievance, Otisville “substantially ceased enforcing
the relevant policy.” Id. at 236–37. Two years later, however, following the arrival of a new warden, the policy “restricting
congregational prayer was reimplemented” and the plaintiff filed suit without filing a second grievance. Id. at 237.
Concluding that the plaintiff's first grievance was sufficient to exhaust his administrative remedies regarding his congregational
prayer policy claim, the Second Circuit vacated the district court's dismissal of this claim. Id. In reaching this conclusion, the
Circuit recognized that “[t]he purpose of the PLRA is to reduce the quantity and improve the quality of prisoner suits[,] and to
afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case”
and found the plaintiff's prior grievance “provided the prison administration with notice of, and an opportunity to resolve, the
same problem that would continue intermittently” through the two years that followed. Id. at 238 (quoting Amador v. Andrews,
655 F.3d 89, 96 (2d Cir. 2011)). It explained that because the issue the plaintiff “would have raised” in a second grievance—“the
inadequacy of the spaces and times allotted for congregational prayer—was identical to the issue he exhausted” in his prior
grievance, the plaintiff's prior grievance “was sufficient to exhaust his administrative remedies with respect to the continuing
limitations on congregational prayer at FCI Otisville.” Id. at 239. However, the Circuit expressly limited its holding “to cases
in which a prior grievance identifies a specific and continuing complaint that ultimately becomes the basis for a lawsuit” and
stressed “that generalized complaints regarding the conditions of an inmate's confinement will [not] suffice to shortcut the
administrative remedy process.” Id.
In this case, even viewed in the light most favorable to Plaintiff, the alleged April 27 grievance about “being denied to make
legal copies and send legal mail,” (Dkt. No. 133, at 46), suggests, at best, a generalized complaint about legal copies and legal
mail at Collins. Thus, although Plaintiff contends that he continued to have difficulties obtaining legal copies and advance
postage for legal mail there is no basis on which to conclude that an April 27 grievance was sufficient to exhaust claims arising
at Marcy. See Rose v. Annucci, No. 16-cv-787, 2018 WL 2729259, at *6, 2018 U.S. Dist. LEXIS 67017, at *15 (N.D.N.Y.
Apr. 19, 2018) (finding that while “hypothetical enforcement concerns may have been part of plaintiff's motivation at the time
that he filed” prior grievances, he failed to show “that the issues raised” in prior grievances asserting that religious meal form
“was an unconstitutional procedural requirement for his attendance at the Eid-Ul-Adha festival,” challenging “the registration
deadline for Ramadan,” and asserting the “belief that he was being penalized for refusing to sign the Religious Meal Form,” were
“identical with” the plaintiff's later claim that he “signed the Religious Meal Form, but was penalized when he stopped attending
group Ramadan meals and refused to take part in counseling”), report and recommendation adopted, 2018 WL 2727874, 2018
U.S. Dist. LEXIS 94735 (N.D.N.Y. June 6, 2018). Thus, even assuming Plaintiff exhausted administrative remedies regarding
the April 27, 2021 grievance at Collins, it was not sufficient to place DOCCS officials at Marcy 14 on notice that Plaintiff
was being wrongfully denied legal copies and advance postage for legal mail. Accordingly, the Court concludes that Plaintiff's
alleged April 27, 2021 grievance fails to raise a triable issue of fact with respect to exhaustion.
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ii. June 15, 2021 Grievance
*15 During his deposition, Plaintiff testified that he did not file any grievances at Collins, other than the one he filed on
April 27, 2021. (Dkt. No. 103-5, at 84–85). However, in the declaration Plaintiff filed in opposition to Defendants’ motion for
summary judgment, Plaintiff states that he filed “a grievance[ ] with Collins on ... June 15, 2021” that was “related to issues with
not being able to send 10 pieces of legal mail by advance on May 25, 2021, and was refused by Collins.” (Dkt. No. 132-3, at 4,
8–9). “The ‘sham issue of fact’ doctrine ‘prohibits a party from defeating summary judgment simply by submitting an affidavit
that contradicts the party's previous sworn testimony.’ ” Moll v. Telesector Res. Grp., Inc., 760 F.3d 198, 205 (2d Cir. 2014)
(emphasis omitted) (quoting In re Fosamax Prods. Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013)). Thus, Plaintiff's contradictory
declaration in insufficient to create a triable issue of fact as to whether he filed a second grievance while at Collins. And, in
any event, Plaintiff offers no evidence that would corroborate his filing of this grievance. Plaintiff cites his handwritten “Mail
Log” as evidence that he filed this grievance, but it contains no supporting factual details and only states the following: “June
15, 2021, sent grievance and claim form superintendent.” (Dkt. No. 136, at 24). Nor has Plaintiff provided copies of a June
15 grievance or any evidence of follow up. Accordingly, the Court finds Plaintiff's belated assertion regarding the filing of a
second grievance at Collins fails to create a material issue of fact as to exhaustion.
b. Alleged Grievances at Marcy
i. September 29, 2021 Grievance
The Amended Complaint alleges that on or about September 29, 2021, Plaintiff sent a letter to Patrick Reardon, the
Superintendent of Marcy, regarding Plaintiff's “problems with” being “denied access to the Courts” and stating that Plaintiff
was enclosing a grievance for “review and filing.” (Dkt. No. 45, at 13, 34). In opposition to Defendants’ motion for summary
judgment, Plaintiff filed a copy of a September 30, 2021 letter he sent to Superintendent Reardon outlining the difficulties
he was having with Debejian with respect to legal mail and legal copies and stating he has “enclosed a grievance to be filed,
please.” (Dkt. No. 142, at 40). There does not appear to be a copy of this grievance in the record and there is no evidence
Plaintiff properly filed this grievance. In any event, sending a grievance to the superintendent does not comply with DOCCS's
inmate grievance procedure. See Beatty v. Goord, 210 F. Supp. 2d 250, 255–56 (S.D.N.Y. 2000) (“[W]riting letters to ... the
[s]uperintendent ... [is] not sufficient to comply with the Inmate Grievance Program”) (citation omitted).
ii. June 9, 2022 Grievances
During his June 15, 2023, deposition, Plaintiff was asked whether, after filing the April 27, 2021, grievance, he filed another
grievance before April 19, 2023. (Dkt. No. 103-5, at 85). Plaintiff responded “no, I wouldn't have.” (Id. at 84). Plaintiff explained
that “the grievance that I had out there was already running as far ... as I knew” and that after the April 27, 2021 grievance,
he “went over and above the grievance process and ... started contacting everybody ... because obviously grievances weren't
working.” (Id. at 85). 15 Following the deposition, Plaintiff sent a letter (dated the same day as the deposition) to defense
counsel “to follow up on some of the questions [he was asked] during the deposition.” 16 (Dkt. No. 133-5, at 6). Plaintiff
explained that he reviewed his “mail log books to see if there was any grievance I filed while at Marcy” and “came across
some entries, and one is on June 9, 2022, that I sent a Grievance to IGRC, two of them actually. One was about Collver and
Debejian, as to advance legal mail and legal copies.... The other one dealt with not receiving my monthly trust fund account
statements.” 17 (Id. at 6–7). Plaintiff acknowledged, however, that he had only mentioned the grievance regarding monthly
statements in the Amended Complaint. (Id. at 7 (citing Dkt. No. 45, ¶ 136 (“June 9, 2022, Dean sent grievance to IGRC in
person about missing monthly statements.”)). Even crediting the statements in Plaintiff's letter (which appears to be verified,
(id. at 14)), Plaintiff has not provided the Court with a copy of any information regarding how he filed this grievance or any
documentation of any such grievance; there is no evidence that he made follow-up inquiries regarding a June 9, 2022 grievance,
see, e.g., Gibbs v. Gadway, No. 19-cv-281, 2019 WL 5191506, at *5, 2019 U.S. Dist. LEXIS 177879, at *2 (N.D.N.Y. Oct.
15, 2019) (finding conclusory claim subject to dismissal where copies of grievance appeals allegedly filed were not submitted
as evidence), report and recommendation adopted, 2020 WL 1227156 at *3, 2020 U.S. Dist. LEXIS 43719 at *7 (N.D.N.Y.
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Mar. 13, 2020). Accordingly, the Court finds Plaintiff has failed to identify a material issue of fact with respect to his purported
June 9, 2022 grievance.
iii. Availability of Grievance System at Marcy 18
*16 Although Plaintiff has failed to raise a material issue of fact as to whether he filed any grievance at Marcy, the Court
has, for the sake of completeness, considered his assertion that the administrative grievance process was “unavailable” to him
at Marcy because prison officials took grievances and threw them away or retaliated when inmates filed grievances. (Dkt.
No. 132-4, at 14–15; see also (Dkt. No. 103-5, at 83 (Plaintiff testifying that the grievances he filed at Marcy had “a habit of
disappearing” and that he did not know “if it's the officers taking the grievances and throwing them away when they see who
they're addressed to or what's going on”)).
Defendants reply that Plaintiff's contention that there is no working grievance system at Marcy is “untrue and baseless.” (Dkt.
No. 160, at 13). As noted above, Defendants have filed a declaration by Pfendler, the Marcy Grievance Supervisor, who states
that “Marcy currently has a fully functioning grievance process and had a fully functioning grievance process from July 2021
through November 2022,” while Plaintiff was at Marcy. (Dkt. No. 103-31, ¶ 6). Pfendler further states that:
Incarcerated Individuals housed in general population at Marcy are provided incarcerated grievance
complaint forms and envelopes upon request. Incarcerated Individuals can file their grievance
complaints by submitting their grievance complaints in a sealed envelope to ensure confidentiality. An
Incarcerated Individual can deposit a grievance complaint, addressed to the Incarcerated Grievance
Program office, in the intra-facility mailbox that is located on their housing unit.
(Id. ¶ 7).
In his declaration in opposition to summary judgment, Plaintiff states that “Marcy's grievance system” is nonexistent “as there
is problems with staff interfering with grievances by intercepting the mail or stealing the grievance from the grievance office
or retaliating for ones that had already been filed in the system.” (Dkt. No. 132-3, ¶ 12). In support of this statement, Plaintiff
filed seven nearly identical declarations by individuals incarcerated at Marcy, including one by Plaintiff himself, stating:
[A]ll I/Is in Marcy who spent anytime here during those time frames, and still ongoing to date, know
that if you put a grievance in the mailbox it will never make it to the Grievance office. The COs
will remove it from the mailbox and destroy it and then retaliate against the person trying send the
grievance, unless it is minor and note related to Marcy. There is no function grievance process per the
Constitution of otherwise at Marcy ... since at the very minimum July 2021.
(Dkt. No. 133-3, at 3). One of the declarations by an incarcerated individual states that on August 15, 2022, the declarant
observed Plaintiff “being told by a Sgt. that he would have to move out of B-2 due to an issue that alleged he had with them
about a grievance.” (Dkt. No. 133-4, at 3). In his declaration in opposition to summary judgment, Plaintiff identifies the Marcy
Sergeant who allegedly retaliated against him as Thomas Coomber, and states that Coomber moved him in retaliation for “a
grievance Plaintiff tried to file on/or about August 12, 2022, by putting into the mailbox in the B-2 Dorm.” 19 (Dkt. No. 132-3,
at 8). Plaintiff states that he had forgotten about the incident until another incarcerated individual reminded him on October
14, 2024. (Id.).
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In the Second Circuit, “[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, 380 F.3d at
688 (quotation marks omitted). And as to retaliation, “[i]t is well settled that a plaintiff's ‘generalized fear’ of retaliation ‘is
insufficient to excuse his failure’ to file a grievance.” Hall v. Annucci, No. 19-cv-5521, 2022 WL 3903255, at *9, 2022 U.S.
Dist. LEXIS 156492, at *24–25 (S.D.N.Y. Aug. 30, 2022) (quoting Little v. Mun. Corp., City of New York, No. 12-cv-5851,
2017 WL 1184326, at *12, 2017 U.S. Dist. LEXIS 46944, at *32 (S.D.N.Y. Mar. 29, 2017)), aff'd, No. 22-2031, 2023 WL
7212156, 2023 U.S. App. LEXIS 29103 (2d Cir. Nov. 2, 2023).
*17 In this case, the allegations in the declarations filed by Plaintiff and six individuals incarcerated at Marcy attesting to
the destruction of non-minor grievances and retaliation “against the person trying to send the grievance” are devoid of factual
detain and constitute generalized allegations of retaliation or interference. (Dkt. No. 133-3, at 3). There is no indication that
the alleged retaliation for a grievance Plaintiff attempted to file in August 2022 has any connection to this action. Moreover,
this cursory allegation is unaccompanied by facts suggesting threats or intimidation, and was insignificant insofar as Plaintiff
admittedly did not recall it two years later. (Dkt. No. 132-3, ¶ 17).
The “sworn statements” by Plaintiff and the six other inmates that officers removed and destroyed grievances are insufficient
to create a question of fact as to the availability of the Marcy grievance system. Neither Plaintiff nor the inmates who filed
declarations offer any factual details or specific examples. “Courts within the Second Circuit have continuously held that mere
contentions or speculation of grievances being misplaced by officers do not create a genuine issue of material fact when there
is no evidence to support the allegations.” Blake v. Porlier, No. 18-cv-1008, 2019 WL 7484052, at *5, 2019 U.S. Dist. LEXIS
173760, at *12–13 (N.D.N.Y. Oct. 4, 2019) (quotation marks omitted), report and recommendation adopted, 2020 WL 58613,
2020 U.S. Dist. LEXIS 1207 (N.D.N.Y. Jan. 6, 2020); see also Khudan v. Lee, No. 12-cv-8147, 2016 WL 4735364, at *6,
2016 U.S. Dist. LEXIS 122217, at *20 (S.D.N.Y. Sept. 8, 2016) (holding that under Ross, mere stand alone contentions of mail
tampering without support and particularity cannot deem administrative remedies unavailable).
Moreover, although Plaintiff states in his declaration that there was a “problem” with staff at Marcy “retaliating for [grievances]
that had already been filed,” (Dkt. No. 132-3, ¶ 12), he does not state in his declaration or verified Amended Complaint that
he did not file grievances at Marcy because he was afraid of retaliation. Thus, the Court finds Plaintiff has failed to identify
a material issue of fact as to the exhaustion, or availability, of administrative remedies. Accordingly, Defendants’ motion for
summary judgment dismissing the Amended Complaint on the ground that Plaintiff failed to exhaust his administrative remedies
is granted.
V. MOTION TO SEAL
Plaintiff moves to seal the sworn statements he submitted in opposition to Defendants’ motion for summary judgment. (Dkt.
No. 132 (citing Dkt. Nos. 133-3, 133-4)). Plaintiff asserts that disclosure of the contents of the statements “will cause retaliation
and/or serious physical and mental harm” to the incarcerated individuals who provided the statements. (Dkt. No. 132-1, ¶ 4).
“[D]ocuments submitted to a court for its consideration in a summary judgment motion are –as a matter of law—judicial
documents to which a strong presumption of access attaches, under both the common law and the First Amendment.” Lugosch
v. Pyramid Co. of Onondaga, 435 F.3d 110, 121 (2d Cir. 2006). That “strong presumption” must be balanced against, as relevant
here, “the privacy interests of ‘innocent third parties.’ ” Wiav Sols. Inc. v. HTC Corp., No. 19-cv-4978, 2021 WL 871415, at
*1, 2021 U.S. Dist. LEXIS 43997, at *3 (S.D.N.Y. Mar. 9, 2021) (quoting S.E.C. v. TheStreet.Com, 273 F.3d 222, 232 (2d Cir.
2001)). “However, the fact that a third party's privacy interests are at stake does not obviate the need for the proposed redactions
to be narrowly tailored to protect those interests.” Id.
Here, Plaintiff seeks wholesale sealing of each sworn statement, but as the statements are nearly identical and contain no
identifying information other than the individual's “NYS DIN” number and name, there appears to be little, if any, privacy
interest implicated by the substantive contents of the statement. However, as third parties making statements in support of
Plaintiff, the publication of the names and DIN numbers of these incarcerated individuals may implicate certain privacy interests,
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and thus redaction is warranted. The Court therefore finds that the redaction of names and DIN numbers from each statement is
necessary to protect each individual's privacy interest, “is essential to preserve higher values and is narrowly tailored to serve
that interest.” Lugosch, 435 F.3d at 120 (quotation omitted). However, Plaintiff offers no explanation for sealing his own sworn
statement, (Dkt. No. 133-3, at 16–17), a letter dated August 17, 2022, (Dkt. No. 133-4, at 4–5), a handwritten note from a Marcy
officer to Plaintiff, (Dkt. No. 133-4, at 6), or the list of names and DIN numbers of individuals housed at Collins and Marcy at
the same time as Plaintiff, (Dkt. No. 133-3, at 22). Thus, as Plaintiff has failed to identify any interest that outweighs the strong
presumption of access to these documents, his motion to seal these documents is denied.
*18 Accordingly, Plaintiff's motion to seal is granted in part and denied in part as follows: the Clerk is directed to redact
the names and DIN numbers from Dkt. No. 133-3, at 3–15, 20–21 and Dkt. No. 133-4, at 3 and unseal the remainder of both
documents. 20
VI. CONCLUSION
For these reasons, it is hereby
ORDERED that the Report and Recommendation (Dkt. No. 145) is REJECTED as moot; and it is further
ORDERED that Defendants’ motion for summary judgment (Dkt. No. 103) is GRANTED; and it is further
ORDERED that as the time period for exhaustion of administrative remedies has expired, the Amended Complaint (Dkt. No.
45) is DISMISSED; and it is further
ORDERED that Plaintiff's motion to seal (Dkt. No. 132) is GRANTED in part and DENIED in part as follows: the Clerk
is directed to redact the names and DIN numbers from Dkt. No. 133-3, at 3–15, 20–21 and Dkt. No. 133-4, at 3 and unseal the
remainder of both documents; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly, close this case, and serve a copy of this Order upon the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
All Citations
Slip Copy, 2025 WL 1811183
Footnotes
1 Magistrate Judge Lovric accepted Defendants’ statement of undisputed facts without considering the verified Amended
Complaint or the context in which Defendants’ record citations arose. For example, Magistrate Judge Lovric
recommended that the Court find Defendants’ assertion that “[t]he relevant time period for this action is July 15, 2021
(when Plaintiff was transferred to Marcy), through November 15, 2022” to be “supported” based principally on a partial
sentence in prior Order summarizing Amended Complaint. (Dkt. No. 145, at 4–5; see Dkt. No. 44, at 6). However, a
basic review of the Order (or of the Amended Complaint) dispels any notion that this action solely concerns events
at Marcy. (See supra Part IV.B.1). In any event, as the Report and Recommendation is moot in light of the additional
briefing, the Court does not further consider it.
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2 The facts are drawn from Defendants’ statement of material facts and Plaintiff's response to Defendants’ statement of
material facts, (Dkt. Nos. 103-2, 132-3), to the extent the facts are supported by “particular parts of materials in the
record,” including, among other things, depositions, affidavits or declarations, or other documents. Fed. R. Civ. P. 56(c).
The Court has also considered Plaintiff's Amended Complaint, which is verified. (Dkt. No. 45); see Colon v. Coughlin,
58 F.3d 865, 872 (2d Cir. 1995) (explaining that a “verified complaint is to be treated as an affidavit ... and [may] be
considered in determining whether material issues of fact exist[.]”) (citations omitted). The facts are construed in the
light most favorable to Plaintiff as the non-moving party. Gilles v. Repicky, 511 F.3d 239, 243 (2d Cir. 2007).
3 Under DOCCS Directive 4421, 7 N.Y.C.R.R. § 721.3(a)(3)(ii), each incarcerated individual receives “a weekly free
postage allowance equivalent to five domestic first class one ounce letters,” and “[t]o ensure that indigent incarcerated
individuals maintain their right of access to the courts,” facilities “shall ... advance request[s]” for postage for legal mail
“if the incarcerated individual has insufficient funds,” and “the balance of unpaid previous advances ... do not exceed
$20.” 7 N.Y.C.R.R. § 721.3(a)(3)(iv). However, even if an incarcerated individual does not qualify for an “advance”
on postage because his unpaid balance exceeds $20, Directive 4421, facility staff must consult “with the department's
office of counsel” before denying the request. Id.
DOCCS Directive 4483 governs “photocopying services,” and provides that if an incarcerated individual “does not have
sufficient funds for the purchase of copies ... he is entitled to obtain an advance from the facility when he establishes that
the documents sought to be copied are required by the courts and cannot be replicated longhand.” (Dkt. No. 103-22, ¶ 7).
“Advances may only be approved by the Law Library Supervisor, in consultation with the Law Library Administrator
or the Office of Counsel.” (Id.) (quotation marks omitted).
4 DOCCS Directive 2788, cited by Plaintiff, governs collection and repayment of inmate advances and obligations and
“how and when a DOCCS facility will deduct money from an account without the inmate's consent.” Liner v. Fischer,
No. 11-cv-6711, 2013 WL 1832316, at *1, 2013 U.S. Dist. LEXIS 62885 (S.D.N.Y. May 2, 2013) (quotation marks
omitted).
5 Plaintiff states in the Amended Complaint that on July 14, 2021, while at Collins, he was told “to packup everything”
as “he was being transferred to another facility” and that he was “located at Marcy C.F. as of July 16, 2021.” (Dkt. No.
45, ¶¶ 23–24). The actual date of transfer is immaterial.
6 Defendants also cite the Amended Complaint and a page from Plaintiff's deposition in support of their argument. (Dkt.
No. 103-2, ¶ 1 (citing Dkt. No. 45; Dkt. No. 103-5, at 30)).
7 McKoy is also a DOCCS official and is named as a Defendant. However, there is no evidence of his involvement while
Plaintiff was at Collins. Indeed, other than being copied on a June 5, 2022, letter Plaintiff sent to Defendant Collver,
(Dkt. No. 45, ¶ 132), the first evidence of any involvement by McKoy is a letter to Plaintiff dated October 22, 2022, (id.
¶ 117-g; Dkt. No. 133, at 53). Accordingly, the Court does not consider McKoy here.
8 This memo does not appear to be in the record.
9 Nor is there evidence of any harm to the Article 78 proceeding as Plaintiff subsequently obtained approval from DSP
Schneider on or about July 6, 2021, for copies and mailings in connection with “a new Order to Show Cause from the
Monroe County Supreme Court.” (Dkt. No. 45, ¶¶ 20–21, 23; see also Dkt. No. 133, at 39 (approving advances for
legal mail and copies)).
10 Complaints of “harassment,” which is not applicable here are subject to a different, expedited procedure. See N.Y. Comp.
Codes R. & Regs. tit. 7, §§ 701.5(a)(2), 701.8.
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11 While Plaintiff denies this factual assertion, he does not meaningfully dispute that DOCCS grievance procedures applied
at Collins or Marcy but instead asserts there are problems with staff interference and retaliation. (Dkt. No. 132-3, ¶¶
11–12).
12 In his declaration, Becker the Collins Grievance Supervisor states an inmate can file a grievance “by submitting their
grievance complaints in a sealed envelope to ensure confidentiality. An Incarcerated Individual can deposit a grievance
complaint, addressed to the Incarcerated Grievance Program office, in the intra-facility mailbox that is located on their
housing unit.” (Dkt. No. 103-11, ¶ 6).
13 Plaintiff also testified that he wrote “[t]he superintendent” and told her that he wanted “to know what happened to
the letter that [he] wrote her in ’21, about the missing ... grievance that [he] never got a response from” and that the
superintendent said “can't find any record of it” and told Plaintiff to write “a note basically what the grievance is about”
and that she would “see if” she could locate it or come up with ... some type of response ... as to what happened” but
that the superintendent has not responded further. (Dkt. No. 103-5, at 83–84).
14 There appears to be little, if any, guidance in the Second Circuit concerning whether a prior grievance that identifies
a specific and continuing complaint, could serve to exhaust administrative remedies as to claims arising at a different
correctional facility.
15 Plaintiff further testified:
Q. So after you got transferred to Marcy in July 2021, you didn't write any grievances there about what was going
on there as far as the mail tampering and the access to courts?
A. No.
(Dkt. No. 103-5, at 86).
16 The letter is dated June 15, 2023, the same day as the deposition. (Dkt. No. 133-5, at 6).
17 There does not appear to be an entry in Plaintiff's mail logs, (Dkt. No. 136), concerning a grievance on June 9, 2022.
18 To the extent Plaintiff argues there was no working grievance system at Collins, the Court notes that in his declaration,
Becker, the Grievance Supervisory at Collins, states that, in accordance with DOCCS Directive 4040, Collins “had a
fully functioning grievance process from April 2021 through July 2021,” the time period when Plaintiff was at Collins.
(Dkt. No. 103-11, ¶ 5). Plaintiff has presented no evidence disputing this statement.
19 Plaintiff does not suggest this grievance concerned legal copies or legal mail. Further, it does not appear to be mentioned
in Plaintiff's mail log, (Dkt. No. 136), or anywhere else in the record.
20 In the reply memorandum, counsel for Defendants disclosed the initials of the third parties who signed the sworn
statements and quoted from the documents, which are, at present, not publicly filed. (Dkt. No. 160, at 13–15).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Harris v. Loverde, Not Reported in F.Supp.2d (2011)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2011 WL 5080089
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Mr. Damecha HARRIS, Plaintiff,
v.
Ms. C. LOVERDE, et al., Defendants.
No. 08–CV–6069–CJS.
|
Oct. 26, 2011.
Attorneys and Law Firms
Damecha Harris, West Coxsackie, NY, pro se.
Gary M. Levine, A.A.G.,, New York State Attorney General's OfficeRochester, NY, for Defendants.
DECISION & ORDER
CHARLES J. SIRAGUSA, District Judge.
INTRODUCTION
*1 Siragusa, J. Pending before this Court are three motions filed by Plaintiff: a motion for summary judgment (Doc. No.
20) filed on March 15, 2010; a motion for a default judgment (Doc. No. 21) filed on May 13, 2010; and a second motion
for summary judgment (Doc. No. 30) filed on July 1, 2010. In addition, Defendants have filed a cross-motion for summary
judgment (Doc. No. 25), which is also pending. For the reasons stated below, the Court grants Defendants' cross-motion, and
denies Plaintiff's two motions as moot.
BACKGROUND
The Court issued a briefing schedule with regard to Plaintiff's first motion for summary judgment (Doc. No. 20), and another
with regard to his motion for default judgment (Doc. No. 21). (Doc. No. 22.) The Court did not issue a scheduling order with
regard to Plaintiff's second motion for summary judgment (Doc. No. 30). On July 6, 2010, the Court issued a briefing schedule
for Defendants' cross-motion for summary judgment, setting a response date of July 23, 2010, and reply date of August 20, 2010.
(Doc. No. 29.) Defendants' cross-motion included the notice required by local rule and case law. (Doc. No. 26 “Irby Notice.”)
Plaintiff's First Motion for Summary Judgment
In his first motion for summary judgment, Plaintiff contends that he is entitled to judgment because, “the documents provided
by the Defendants' attorney under ‘Initial Discovery,’ on or about August 31, 2009, clearly contradict the Defendants' responses
of May 15, 2009, and Clearly support [sic] all of the allegations raised in the complaint.” (Doc. No. 20, Harris Aff. ¶ 2.) Plaintiff
contends that Defendants used “the pretext of a cell search for the sole purpose of confiscating and reading plaintiff's legal
mail,” in violation of his constitutional rights. (Id. ¶ 3.)
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Defendants oppose this motion, arguing that Plaintiff failed to follow the requirements of W.D.N.Y. Local Rule of Civil
Procedure 56 .1 and that Plaintiff's assertion, that Defendants' Federal Rule of Civil Procedure 26 discovery and their answer
support his motion, “is incorrect.” (Doc. No. 25, Bove Decl., ¶ 7.)
Plaintiff's Motion for Default Judgment
Plaintiff moved for entry of a default judgment (Doc. No. 21) on May 13, 2010. Unfortunately, the motion is difficult to read
owing to Plaintiff's handwriting. In his motion, Plaintiff asks for entry of judgment “against all three of the defendants....” (Doc.
No. 21 at 1.) The basis for his request is his contention that Defendants,
fail[ed] to comply with the Court exigent imposed [sic] order of 05–07–10, to file a[n] answer to the
Plaintiff['s] Notice of Motion and Affirmation in support for summary judgment, which none of the
defendants addressed or objected to the relief [illegible] within the time prescribed by law imposed by
this court order....
(Doc. No. 21 at 1.) Defendants responded to this motion by stating:
Plaintiff's Motion for Default must be denied as the Court has extended the deadline for filing dispositive
Motions in this Action on February 16, 2010 to April 30, 2010 and on May 24, 2010 to June 30, 2001.
Docket Numbers 15 and 23. In addition the deadline for defendant's Response to plaintiff's Motions has
been set as June 30, 2010. Docket Number 24. Unless there is an explicit deadline in a scheduling Order,
it is the practice of the Court to issue a scheduling Order setting the time frames for the opposing party's
response. Defendants have complied with the Court's Orders. The scheduling order plaintiff is relying
on was superseded by subsequent orders.
*2 (Doc. No. 25, Bove Decl., ¶ 8.)
Plaintiff's Second Motion for Summary Judgment
On July 1, 2010, Plaintiff filed a second motion for summary judgment. (Doc. No. 30.) In that application, however, he simply
opposed Defendants' request for an extension of time to respond to Plaintiff's original summary judgment motion and asked that
the Court deny Defendants the opportunity to file papers in opposition to Plaintiff's original summary judgment motion. (Doc.
No. 30 at 2–3 .) He also repeated his argument from the original summary judgment motion: that Defendants' initial discovery
provides the basis for granting him judgment and that none of the defendants is entitled to qualified immunity. (Id. ¶¶ 5–6.)
In particular, Plaintiff refers to what he identifies as “Defendants ['] Declaration of title part of paragraph [sic] 2, 5, as stated
below....” (Id. ¶ 8.) He then quotes the language as follows:
There is only one claim remaining in this action in the complaint filed on February 15, 08 Docket # 1, to
wit, that Plaintiff's legal mail was confiscated and read by defendants in November 2007 at Attica Corr.
Facility and Defendants do not object to the Relief Requested in Plaintiff[']s motion, et al.
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(Id.) Since Plaintiff did not specifically cite to the declaration from which he supposedly quoted this language, the Court has
searched the declaration of Emil Bove, Assistant Attorney General (Doc. No. 25) and found the following language, which
appears to track closely, but not exactly, the language Plaintiff quoted:
Damecha Harris, 92–A–1389, commenced the instant Action on February 15, 2009 [sic]. In the claims in
the Complaint dated December 31, 2007 remaining after the June 13, 2008 Order, plaintiff alleged that
his right to access to the Courts was denied in November 2007 at Attica Correctional Facility when his
legal mail was confiscated and read. Specifically, plaintiff claims defendants improperly read mail from
his attorney. Docket Numbers 1 and 3.
(Doc. No. 25, Bove Decl., ¶ 2.) Mr. Bove's declaration also contains this language:
The facts as to which there is no genuine issue demonstrate: (A) that the letter from plaintiff's attorney
describing how the proceeds of a civil action that had been settled were distributed to other inmates was
confiscated as evidence of misconduct from plaintiff's cell after it had been delivered to him; (B) the
confiscation of the letter did not interfere with the type of case that might give rise to a claim for denial
of access; (C) plaintiff did not suffer detriment to the case in question as a result of the interference; and
(D) plaintiff did not exhaust his administrative remedies concerning this claim.
(Id. ¶ 5.)
ANALYSIS
Defendants are correct in their contention that Plaintiff did not comply with the local rule requiring a statement of facts in
support of any motion seeking summary judgment. That rule, 56(a)(1), reads as follows:
*3 (a) Statements of Facts on Motion for Summary Judgment.
(1) Movant's Statement. Upon any motion for summary judgment pursuant to Federal Rule of Civil Procedure 56, there
shall be annexed to the notice of motion a separate, short, and concise statement, in numbered paragraphs, of the material
facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may
constitute grounds for denial of the motion.
Plaintiff's failure to submit a statement of material facts with his summary judgment motions. (Doc. Nos.20, 30), provides a
ground for denying his applications. However, as discussed below, the Court, instead, dismisses Plaintiff's complaint, thereby
rendering his pending motions moot.
Plaintiff failed to exhaust his administrative remedies prior to filing his lawsuit. Under the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a), “[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.” (emphasis added). With certain exceptions addressed below, such exhaustion of administrative
remedies is mandatory. See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) (“[E]xhaustion in cases
covered by § 1997e(a) is now mandatory.”) (citation omitted). “Even when the prisoner seeks relief not available in grievance
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proceedings, notably money damages, exhaustion is a prerequisite to suit.” Id. 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.” Id. at 532. Generally in order to satisfy § 1997e(a), a plaintiff must use the DOCCS 1 's
inmate grievance procedures:
To initiate the process, an inmate must file a written complaint with the Inmate Grievance Resolution Committee (“IGRC”),
a facility committee composed of inmates and appointed staff members. See N.Y.C.R.R. § 701.4–.5. The complaint must
“contain a concise, specific description of the problem and the action requested.” N.Y.C.R.R. § 701.7(a)(1)(i) (1998) (now
codified as amended at N.Y.C.R.R. § 701.5(a)(2) (2007)). Second, the inmate can appeal an unfavorable IGRC determination
to the superintendent of the facility. See N.Y.C.R.R. § 701.7(b) (1998) (now codified as amended and renumbered at
N.Y.C.R.R. § 701.5(c) (2007)). Finally, an inmate can appeal an unfavorable superintendent's determination to the Central
Office Review Committee (“CORC”). See N.Y.C.R.R. § 701.7(c) (1998) (now codified as amended and renumbered at
N.Y.C.R.R. § 701.5(d) (2007)); Directive No. 4040.
Amador v. Andrews, No. 08–2079–pr, ––– F.3d ––––, 2011 WL 3629717 at *4 (2d Cir.2011).
Plaintiff states in his Response to Defendants' Cross–Motion (Doc. No. 32) that he filed a grievance (Ex. A). However, there is
no record of his filing. He alleges that if there is no record of it, then the grievance committee must have misplaced it. (Id. at
2). However, Plaintiff took no further action to continue pursuing his administrative remedies prior to filing this action. Where
an inmate fails to exhaust his administrative remedies in accordance with prescribed prison procedures, the following three-
part inquiry is appropriate:
*4 The Court must ask whether administrative remedies were in fact available to the prisoner. The
Court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-
exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's
exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to
exhaust as a defense. If the Court finds that administrative remedies were available to the plaintiff, and that
the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff
nevertheless did not exhaust available remedies, the Court should consider whether special circumstances
have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural
requirements.
Hemphill v. New York, 380 F.3d 680, 686 (2d Cir.2004) (citations and internal quotation marks omitted); See also, Brownell
v. Krom, 446 F.3d 305, 311 (2d Cir.2006). The United States Supreme Court decided in Woodford v. Ngo, 548 U.S. 81, 126
S.Ct. 2378, 165 L.Ed.2d 368 (2006) the question of whether “a prisoner can satisfy the [PLRA's] exhaustion requirement, 42
U.S.C. § 1997e(a), by filing an untimely or otherwise procedurally defective administrative grievance or appeal.” Id. at 83–
84. There, the Supreme Court held that the PLRA requires “proper exhaustion,” which “means using all steps the agency holds
out, and doing so properly (so that the agency addresses the issues on the merits).” Id. at 90 (internal quotations omitted); see
also Ruggiero v. County of Orange, 467 F.3d 170, 176 (2d Cir.2006) (interpreting Woodford as holding that PLRA exhaustion
mandates “compliance with an agency's deadlines and other critical procedural rules”) (quoting Woodford v. Ngo, 548 U.S. at 90).
Here, reviewing the three-part inquiry directed d by Hemphill, the Court finds that Plaintiff has failed to exhaust his
administrative remedies. First, Plaintiff had administrative remedies available to him. Second, Defendants raised the exhaustion
defense in their answers, as well as in the cross-motion for summary judgement, and there is no evidence that they took any action
to inhibit Plaintiff's exhaustion of remedies. Finally, the Court finds no special circumstances in this case to justify Plaintiff's
failure to comply with the procedural requirements. In that regard, Plaintiff's statement that “they [the grievance committee]
misplaced it” does not present a reasonable excuse or a special circumstance. (Doc. No. 32). The Court finds the “copy” of the
grievance (Id. at Ex. A) unreliable as it was not produced with the Complaint, not notarized, and there is no record of it having
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been filed. Additionally, Plaintiff failed to follow-up his filed complaint pursuant to the the procedure set out in the DOCCS
Directive and required by the PLRA. Consequently, DOCCS was not allowed to address his claim on its merits. Therefore,
Plaintiff was not justified in failing to exhaust his administrative remedies prior to filing his § 1983 claim, and his claim must
be dismissed without prejudice.
CONCLUSION
*5 For the reasons discussed above, Plaintiff's motions (Doc. Nos.20, 21, 30) are denied, Defendants' cross-motion for
summary judgement is granted (Doc. No. 25), and Plaintiff's complaint (Doc. No. 1) is dismissed without prejudice.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2011 WL 5080089
Footnotes
1 The department has changed it name following a merger with the Division of Parole. The department is now known as
the New York State Department of Corrections and Community Supervision.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Henderson v. Popp, Slip Copy (2025)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Report and Recommendation Adopted by Henderson v. Popp, N.D.N.Y., March 28, 2025
2025 WL 1033853
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael Joshua HENDERSON, Plaintiff,
v.
Bryan POPP, et al., Defendants.
9:22-CV-0242 (AMN/MJK)
|
Signed March 4, 2025
Attorneys and Law Firms
MICHAEL JOSHUA HENDERSON, Plaintiff, Pro Se.
NICHOLAS DORANDO, ESQ., Assistant Attorney General, for Defendants.
ORDER and REPORT AND RECOMMENDATION
MITCHELL J. KATZ, United States Magistrate Judge
*1 TO THE HONORABLE ANNE M. NARDACCI, DISTRICT JUDGE:
This matter has been referred to me for Report and Recommendation by United States District Judge Anne M. Nardacci, pursuant
to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(c).
Plaintiff commenced this action seeking remedies under 42 U.S.C. § 1983 by filing a complaint on March 14, 2022. (Dkt. No. 1).
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 the sufficiency of the claims therein and entered a Memorandum-Decision and Order on May 12, 2022. (Dkt. No. 4).
Plaintiff filed an amended complaint on August 23, 2022. (Dkt. No. 20). In accordance with 28 U.S.C. § 1915(e)(2)(B) and 28
U.S.C. § 1915A(b), Judge Kahn reviewed the sufficiency of the claims therein and entered a Decision and Order on August 23,
2022. (Dkt. No. 19). The Court determined that the following claims survived sua sponte review and required a response: (1)
Plaintiff's First Amendment retaliation claims against Defendants McLenithan, Guyette, Popp, Hamel, Fraser, Reynolds, and
Jones; (2) Plaintiff's Fourteenth Amendment substantive due process claims against Defendants McLenithan, Guyette, Popp,
Hamel, Fraser, Reynolds, Jones, and Scarlotta; (3) Plaintiff's Fourteenth Amendment procedural due process claim against
Defendant Reynolds; (4) Plaintiff's Eighth Amendment failure-to-protect and excessive force claims against Defendant Popp;
(5) Plaintiff's Section 1983 conspiracy claims against Defendants Guyette, Popp, Hamel, Fraser, and Reynolds; and (6) Plaintiff's
intentional infliction of emotional distress claims against Defendants McLenithan, Guyette, Popp, Hamel, Fraser, and Jones.
(Dkt. No. 19, pgs. 4-5).
Except for Defendant Reynolds, all Defendants filed their answer on November 7, 2022. (Dkt. No. 29). An answer on behalf
of Defendant Reynolds was filed on December 22, 2023. (Dkt. No. 53). Among their defenses, Defendants assert that Plaintiff
failed to exhaust his administrative remedies. (Dkt. Nos. 29 and 53, ¶14).
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Discovery has been completed and Defendants move pursuant to Fed. R. Civ. P. 56(a) for an order granting summary judgment,
dismissing Plaintiff's amended complaint in its entirety with prejudice. (Dkt. Nos. 59 through 59-14). Defendants each submitted
a declaration in support of the motion, a “joint” Statement of Material Facts (“SOMF”), the declarations of non-party witnesses
Alexandria Cutler, Rachel Sequin and Lisa Stickney, a memorandum of law, and a reply memorandum of law in support of their
motion for summary judgment. Plaintiff filed a response to the motion. (Dkt. Nos. 67 through 67-4). Consistent with applicable
case law and Local Rule 56.2, Defendants and the Clerk each provided Plaintiff with notice of the consequences of failing to
respond to the motion. (Dkt. Nos. 59, 60). 1
I. Summary Judgment
A. Legal Standard
*2 “Summary judgment is proper 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.” ING Bank N.V. v. M/V TEMARA, IMO, 892 F.3d 511, 518 (2d Cir. 2018). In ruling
on a summary judgment motion, the district court must first “determine whether there is a genuine dispute as to a material
fact, raising an issue for trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotations
and citations omitted).
In reviewing the record to determine whether there is a genuine issue for trial, the court must “construe the evidence in the
light most favorable to the non-moving party,” Costello v. City of Burlington, 632 F. 3d 41, 45 (2d. Cir. 2011), and “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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (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. PriceWaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (quoting Vivenzio v. City of Syracuse, 611 F.3d 98, 108 (2d
Cir. 2010)). “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, 106 S.Ct. 1348. “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).
“If the defendant in a run-of-the-mill civil case moves for summary judgment ..., the judge 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “A court cannot credit a plaintiff's merely speculative or conclusory
assertions.” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir. 2012).
When a party moves for summary judgment against a pro se litigant, the Second Circuit requires that “pro se litigants have actual
notice, provided in an accessible manner, of the consequence of the pro se litigant's failure to comply with the requirements
of Rule 56.” Irby v. New York City Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001). When such notice is given, courts in this
district have routinely held that if a pro se plaintiff fails to respond to a motion for summary judgment, the court may accept
defendant's factual assertions in the statement of material facts as true to the extent they are supported by the evidence in the
record. See Jackson v. Moore, No. 9:21-CV-1001 (GTS/ATB), 2023 WL 4710869, at *2 (N.D.N.Y. Apr. 14, 2023), report and
recommendation adopted, 2023 WL 4711091 (N.D.N.Y. Jul. 24, 2023); see also Price v. Oropallo, No. 9:13-CV-563 (GTS/
TWD), 2014 WL 4146276, at *5 (N.D.N.Y. 2014); Ahmed v. Frazer & Jones, Co., No. 5:13-CV-573 (GTS/TWD), 2015 WL
470648 at *2 (N.D.N.Y. Feb. 4, 2015); Local Rule 56.1(b).
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*3 While courts are required to give due deference to a plaintiff's pro se status, that status “does not relieve [a pro se] plaintiff
of his duty to meet the requirements necessary to defeat a motion for summary judgment.” Salaam v. Stock, No. 9:19-CV-00689
(AMN/TWD), 2023 WL 3853811, at *2 (N.D.N.Y. Feb. 27, 2023), report and recommendation adopted, 2023 WL 3579770
(N.D.N.Y. May 22, 2023) (citing Jorgensen v. Epic/Sony Records, 351 F.3d 46, 50 (2d Cir. 2003)); see also Meagher v. State
Univ. Constr. Fund, No. 1:17-CV-0903 (GTS/CFH), 2020 WL 5504011, at *16 (N.D.N.Y. Sept. 11, 2020) (“where a non-
movant willfully fails to respond to a motion for summary judgment, a district court has no duty to perform an independent
review of the record to find proof of a factual dispute–even if that non-movant is proceeding pro se”). “This requirement is
not a mere formality; rather ‘this and other local rules governing summary judgment are essential tools intended to relieve the
district court of the onerous task of hunting through voluminous records without guidance from the parties.’ ” Id. (citing Cao-
Bossa v. New York State Dep't of Lab., No. 1:18-CV-0509 (GTS/TWD), 2021 WL 3674745, at *1 (N.D.N.Y. Aug. 19, 2021)).
The Second Circuit has ruled that “[a] district court has broad discretion to determine whether to overlook a party's failure
to comply with local court rules,” including local rules relating to requirements regarding the submission of and response to
statements of material facts on summary judgment motions, and to “conduct an assiduous review of the record.” Id. (citing
Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)) (citation and internal quotation marks omitted).
Local Rule 56.1(b) requires that the non-movant file a response to the movant's statement of material facts (“SOMF”) which
admits or denies each of the movant's factual assertions in matching number paragraphs and supports any denials with a specific
citation to the record where the factual issue arises. Where a party fails to respond to the movant's statement of material facts
as required by Local Rule 56.1(b), the court may deem facts set forth in a movant's therein to be admitted, “where (1) those
facts are supported by evidence in the record, and (2) the non-movant has willfully failed to properly respond to that statement.”
Coulter v. Barbeque Integrated, Inc., No. 5:20-CV-533 (GTS/ATB), 2022 WL 3444953, at *5 (N.D.N.Y. Aug. 17, 2022), appeal
withdrawn, No. 22-2034, 2022 WL 19005660 (2d Cir. 2022); see also, N.D.N.Y. Local Rule 56.1(b); Const. Pipeline Co., LLC
v. Permanent Easement for 1.06 Acres, No. 1:14-CV-2112 (NAM/DJS), 2022 WL 61316, at *1, n.1 (N.D.N.Y. Jan. 6, 2022)
(“Because Defendant has not responded to Plaintiff's Statement of Material Facts, the facts herein are deemed admitted to the
extent they are supported by the record.”).
B. Plaintiffs Response to Defendant's Statement of Material Facts
The facts set forth below were detailed in Defendants’ SOMF pursuant to Rule 56.1(a). (Dkt. No. 59-1). Plaintiff's response to
the SOMF (Dkt. No. 67) (“Response”) does not conform to Local Rule 56.1(b) in any respect. Specifically, Plaintiff denies each
factual statement and provides a rambling affidavit (“Plaintiff's Affidavit,” “Affidavit,” or “Plaintiff's Aff.”) which is largely
a restatement of the allegations in, and citations to, his amended complaint. 2 “The responding Statement of Material Facts is
not a mere formality.” Cross v. State Farm Ins. Co., 926 F. Supp. 2d 436, 441 (N.D.N.Y. Feb. 22, 2013). “To the contrary, this
and other local rules governing summary judgment are “essential tools” intended to relieve the district court ‘of the onerous
task of “hunt[ing] through voluminous records without guidance from the parties.” ’ ” Carter v. Broome County, 394 F. Supp.
3d 228, 238 (N.D.N.Y. 2019) (quoting N.Y. State Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d
640, 649 (2d Cir. 2005)); see also Frantti v. New York, 414 F. Supp. 3d 257, 284 (N.D.N.Y. Oct. 29, 2019), affirmed, 850 F.
App'x 17 (2d Cir. 2021).
*4 Here, Plaintiff's claims rely upon many of the facts set forth in the SOMF and he refers to his extensive Affidavit and
references to his complaint which proves some of the facts to be true. Similarly, Plaintiff denies some of the facts notwithstanding
admitting them in his deposition testimony. Significantly, when Plaintiff denies the facts, there is no specific basis for him doing
so. This approach provides grounds to simply ignore the document or deem the unsubstantiated denials as admitted.
Nevertheless, in consideration of the Plaintiff's pro se status, the Court did examine his Response to determine whether his
Affidavit, complaint, or deposition testimony provided a basis to deem the facts admitted, or a basis for him to deny or otherwise
controvert any of the facts. The Court's findings are set out below after each statement of fact.
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1) Plaintiff was housed at Great Meadow Correctional Facility (“Great Meadow”) from March 16, 2018, until July 3, 2020,
which includes the time period at issue. (Cutler Decl., ¶ 19, Dkt. No. 59-3). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 4-14,
¶¶ 3-12, Dkt. No. 67).
2) During the relevant period, Great Meadow's incarcerated grievance process was fully functioning and available to incarcerated
individuals. Incarcerated individuals at Great Meadow had, and continue to have, full access to CORC to appeal facility-level
grievance determinations. (Seguin Decl., ¶ 11, Dkt. No. 59-12). Plaintiff denies this fact. (Dkt. No. 67-2, pg. 13, Affidavit of
non-party Richard Herne).
3) On March 23, 2019, Defendant McLenithan was working at Great Meadow in the B-Block housing unit. (McLenithan Decl.,
¶ 5, Dkt. No. 59-9). Plaintiff admits this fact. (Plaintiff's Aff., pg. 4, ¶ 3, Dkt. No. 67).
4) At approximately 12:40 P.M., Defendant McLenithan was at the console outside of B-6 Block. (McLenithan Decl., ¶ 5, Dkt.
No. 59-9). Plaintiff admits this fact. (Plaintiff's Aff., pg. 4, ¶ 3, Dkt. No. 67).
5) Plaintiff approached the window of the console, where Defendant McLenithan was located, and complained about not being
let out of his cell, asking for Defendant McLenithan's name. (McLenithan Decl., ¶ 5, Dkt. No. 59-9; Dorando Decl., Exhibit
“A”, pg. 22 3 ). Plaintiff admits this fact. (Plaintiff's Aff., pg. 4, ¶ 3, Dkt. No. 67).
6) Defendant McLenithan observed Plaintiff become increasingly agitated, and ordered him to continue up the stairs and return
to his cell by telling him to “Lock In.” (McLenithan Decl., ¶ 7, Dkt. No. 59-9). Plaintiff admits that he “ordered him to continue
up the stairs and return to his cell by telling him to “Lock In.” (Plaintiff's Aff., pgs. 4-5, ¶ 3, Dkt. No. 67) (emphasis added).
7) Defendant McLenithan observed Plaintiff yelling belligerently as he went up the stairs to B-5 Block. (McLenithan Decl., ¶
8, Dkt. No. 59-9). Plaintiff denies this fact. (Plaintiff's Aff., pgs. 4-5, ¶ 3, Dkt. No. 67).
8) Defendant McLenithan ordered Plaintiff to stop, but Plaintiff continued yelling. (McLenithan Decl., ¶ 8, Dkt. No. 59-9;
Plaintiff's Aff., pgs. 4-5, ¶ 3, Dkt. No. 67). Plaintiff denies this fact. (Plaintiff's Aff., pgs. 4-5, ¶ 3, Dkt. No. 67).
9) Plaintiff then told Defendant McLenithan that he would “take care of” his issue the next time Defendant McLenithan was
out of console, which Defendant McLenithan believed was a threat against him. (McLenithan Decl., ¶ 8, Dkt. 59-9). Plaintiff
did not deny stating to Defendant McLenithan that he will “take care of it,” but rather asserts the phrase is “vague and does
not constitute a threat.” (Dkt. 67-1, pg. 7, at ¶2).
*5 10) Failing to obey an order, harassing an officer, and threatening other people in the prison is prohibited conduct and
against DOCCS rules. (McLenithan Decl., ¶ 9, Dkt. 59-9). Plaintiff denies this fact. (Plaintiff's Aff., pgs. 4-5, ¶ 3, Dkt. No. 67).
11) As a result of Plaintiff's conduct, Defendant McLenithan drafted a Misbehavior Report (“MBR”), accusing Plaintiff of
Threats (Rule 102.10), Harassment (Rule 107.11), and Failure to Obey a Direct Order (Rule 106.10). (McLenithan Decl., ¶ 9,
Exhibit “A,” pg. 5, Dkt.5 9-9; Dorando Decl., Exhibit “A,” pg. 23, Dkt. No. 59-4). Plaintiff admits that a MBR was prepared.
(Plaintiff's Aff., pgs. 4-5, ¶ 3, Dkt. No. 67; Dkt. No. 67-1, pg. 2).
12) Plaintiff did not file a grievance regarding the March 23, 2019 incident, nor did he appeal any such grievance to the Central
Office Review Committee (“CORC”). (Seguin Decl., ¶¶ 9, 13, Dkt. No. 59-12; Cutler Decl., ¶¶ 14-19, Dkt. No. 59-3). Plaintiff
denies this fact. (Plaintiff's Aff., pg. 14, ¶ 14, Dkt. No. 67).
13) This MBR was the subject of a hearing conducted by Defendant Scarlotta. (Dorando Decl., Exhibit “A,” pg. 24, Dkt. No.
59-4; Scarlotta Decl., ¶ 10, Exhibit “A,” Dkt. No. 59-11). Plaintiff admits this fact. (Plaintiff's Aff., pg. 5, ¶ 4, Dkt. No. 67).
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14) Following a hearing, where Plaintiff was permitted to be heard, Plaintiff was found guilty of the charges in the MBR and
sentenced to 30 days keeplock confinement. (Dorando Decl., Exhibit “A,” pgs. 25-26, Dkt. No. 59-4; Scarlotta Decl., ¶ 16,
Exhibit “A,” pg. 6, Dkt. No. 59-11). Plaintiff admits this fact. (Plaintiff's Aff., pg. 5, ¶ 4, Dkt. No. 67).
15) Plaintiff filed grievances unrelated to this hearing at Great Meadow before and after the hearing occurred. (Seguin Dkt.
Decl., ¶ 13, Exhibit “A,” pgs. 7-9; Scarlotta Decl., ¶ 19, Dkt. No. 59-11). Plaintiff admits this fact. (Plaintiff's Aff., pg. 14, ¶
14, Dkt. No. 67).
16) Plaintiff appealed the hearing determination within the facility, and the decision was affirmed. (Cutler Decl., pg. 22, Dkt.
No. 59-3 4 ; Dorando Decl., Exhibit “A,” pg. 25, Dkt. No. 59-4). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 5-6, ¶ 4, Dkt
No. 67; Dkt. No. 67-1, pgs. 6-9).
17) Several months later, on December 31, 2019, Defendant Guyette wrote another misbehavior report regarding Plaintiff.
(Guyette Decl., ¶ 10, Exhibit “A,” pg. 5, Dkt. No. 59-6). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 6-7, ¶ 5, Dkt. No. 67).
18) At that time, Defendant Guyette was working in the C-2 Block at Great Meadow. (Guyette Decl., ¶ 6, Dkt. No. 59-6).
Plaintiff admits this fact. (Plaintiff's Aff., pgs. 6-7, ¶ 5, Dkt. No. 67).
19) On December 31, 2019, Plaintiff requested to use the phone or the tablet at the kiosk. (Guyette Decl., ¶ 7, Dkt. No. 59-6).
Plaintiff admits this fact. (Plaintiff's Aff., pgs. 6-7, ¶ 5, Dkt. No. 67).
20) At approximately 6:52 P.M., Defendant Guyette allowed Plaintiff out of his cell to use the telephone. (Guyette Decl., ¶ 7,
Dkt. No. 59-6). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 6-7, ¶ 5, Dkt. No. 67).
*6 21) Plaintiff chose to use the tablet at the kiosk. (Guyette Decl., ¶ 7, Dkt. No. 59-6; Dorando Decl., Exhibit “A,” pg. 27,
Dkt. No. 59-4). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 6-7, ¶ 5, Dkt. No. 67).
22) When Plaintiff went to the kiosk, Defendant Guyette left Plaintiff to use the tablet, and went to the entry of the C-2 Block
to let staff and a nurse onto the company to administer medications. (Guyette Decl., ¶ 8, Dkt. No. 59-6). Plaintiff admits this
fact. (Plaintiff's Aff., pgs. 6-7, ¶ 5, Dkt. No. 67).
23) When Defendant Guyette returned approximately 10 minutes later, he saw Plaintiff on the phone. (Guyette Decl., ¶ 8).
Plaintiff denies this fact. (Plaintiff's Aff., pgs. 6-7, ¶ 5, Dkt. No. 67).
24) As a result of this conduct, which violated Rule 121.12 – Phone Violation Use of Phone or Kiosk, Defendant Guyette drafted
an MBR, accusing Plaintiff of that charge which was countersigned by C.O. Worth. (Guyette Decl., ¶ 10, Exhibit “A,” pg. 5,
Dkt. No. 59-6). Plaintiff admits the preparation of the MBR. (Plaintiff's Aff., pgs. 6-7, ¶ 5, Dkt. No. 67; Dkt. No. 67-1, pg. 21).
25) After a hearing where the phone record was reviewed, Plaintiff was found guilty of the charge in the MBR. (Guyette Decl.,
¶ 14, Dkt. No. 59-6). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 6-7, ¶ 5, Dkt. No. 67).
26) This hearing was affirmed on appeal. (Dorando Decl., Exhibit “A,” pg. 31, Dkt. No. 59-4). Plaintiff admits this fact.
(Plaintiff's Aff., pgs. 6-7, ¶ 5, Dkt. No. 67; Dkt. No. 67-1, pgs. 25-28).
27) Plaintiff did not file a grievance regarding the December 31, 2019, incident, nor did he appeal any such grievance to CORC.
(Seguin Decl., ¶ 9, Dkt. No. 59-12; Cutler Decl., ¶¶ 14-19, Dkt. No. 59-3). Plaintiff denies this fact. (Plaintiff's Aff., pgs. 14-15,
¶ 14, Dkt. No. 67).
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28) Several days later, on or about January 8, 2020, Defendant Popp issued Plaintiff an MBR for conduct that occurred in the
law library of Great Meadow at approximately 6:30 P.M. (Popp Decl., ¶ 7, Dkt. No. 59-10). Plaintiff admits that Defendant
Popp issued him a MBR for conduct that occurred in the Great Meadow law library, but denies the date was January 8, 2020.
(Plaintiff's Aff., pgs. 9-10, ¶ 9, Dkt. No. 67).
29) Defendant Popp observed Plaintiff using library computers and equipment to write grievances against a specific officer to
circulate to other incarcerated individuals for filing, in a process referred to as “shot gunning” grievances, which is a Facility
Correspondence Violation (Rule 180.11). (Popp Decl., ¶ 14, Dkt. No. 59-10). Plaintiff denies this fact. (Plaintiff's Aff., pgs.
9-10, ¶ 9, Dkt. No. 67).
30) Defendant Popp issued Plaintiff an MBR, charging him with Refusing a Direct Order (Rule 104.10), and Facility
Correspondence Violation (Rule 180.11). (Popp Decl., Exhibit “A,” pg. 8). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 9-10,
¶ 9, Dkt. No. 67; Dkt. No. 67-1, pg. 32).
31) As the area Sergeant, Defendant Hamel reviewed the MBR and approved it. (Hamel Decl., ¶ 8, Dkt. No. 59-7). Plaintiff
denies this fact. (Plaintiff's Aff., pg. 8, ¶ 6, Dkt. No. 67).
32) Plaintiff did not file a grievance regarding the January 8, 2020 MBR, nor did he appeal any such grievance to the central
office. (Seguin Decl., ¶ 9. Dkt. No. 59-12; Cutler Decl., ¶¶ 14-19, Dkt. No. 59-3). Plaintiff denies this fact. (Plaintiff's Aff.,
pgs. 14-15, ¶ 14, Dkt. No. 67).
*7 33) The January 8, 2020, MBR was the subject of a Tier 2 hearing where Plaintiff was found guilty of the Facility
Correspondence Violation charge and sentenced to a suspended sentence of 15 days in keeplock confinement, which would not
be served if Plaintiff refrained from committing additional offenses. (Popp Decl., ¶ 13, Dkt. No. 59-10; Reynolds Decl., ¶ 18,
Exhibit “A,” pg. 8, Dkt. No. 72 5 ). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 9-10, ¶ 9, Dkt. No. 67).
34) Additionally, Defendant Reynolds recommended that Plaintiff be removed from the Law Library Program. (Reynolds Decl.,
¶ 21, Exhibit “A,” pg. 8, Dkt. No. 72). Plaintiff denies this fact. (Plaintiff's Aff., pg. 8, ¶ 6, Dkt. No. 67).
35) Defendant Reynolds’ recommendation for removal from the Law Library Program had no force and effect unless endorsed
by the Programming Committee, which is headed by the Deputy Superintendent of Programs (“DSP”). (Reynolds Decl., ¶¶ 20,
22, Dkt. No. 72; Stickney Decl., ¶¶ 10-11, Dkt. 59-13). Plaintiff denies this fact. (Plaintiff's Aff., pg. 8, ¶ 6, Dkt. No. 67).
36) Then-DSP Stickney made the ultimate determination to remove Plaintiff from his program. (Stickney Decl., ¶¶ 10, 11, Dkt.
No. 59-13). Plaintiff denies this fact. (Plaintiff's Aff., pgs. 8, 9,10, 15, ¶ 6, 9. 15, Dkt. No. 67).
37) On January 24, 2020, Plaintiff was involved in an altercation with another incarcerated individual. (Dorando Decl., Exhibit
“A,” pgs. 41-42, Dkt. No. 59-4). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 12-13, ¶ 11, Dkt. No. 67; Dkt. No. 67-1, pg. 43).
38) Plaintiff did not file a grievance regarding the January 24, 2020 incident, nor did he appeal any such grievance to CORC.
(Seguin Decl., ¶ 9, Dkt. No. 59-12; Cutler Decl., ¶¶ 14-19, Dkt. No. 59-3). Plaintiff denies this fact. (Plaintiff's Aff., pgs. 14-15,
¶ 14, Dkt. No. 67).
39) Several months later, in June 2020, Plaintiff was housed in the C-1-30 Company of Great Meadow. (Jones Decl., ¶ 7, Dkt.
No. 59-8; Cutler Decl., ¶ 30, Dkt. No. 59-3). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 13-14, ¶ 12, Dkt. No. 67; Dkt.
No. 67-1, pg. 3).
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40) On June 7, 2020, C.O. Laura Jones issued Plaintiff an MBR because she observed him passing an unidentified object to
another incarcerated individual at approximately 11:45 A.M. (Jones Decl. ¶¶ 7-8, 10, Dkt. No. 59-8). Plaintiff admits this fact.
(Plaintiff's Aff., pgs. 13-14, ¶ 12, Dkt. No. 67).
41) Plaintiff was charged with violating Rule 106.10 – Direct Order, and Rule 113.15 Unauthorized Exchange. (Jones Decl., ¶
10, Exhibit “A,” pg. 5). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 13-14, ¶ 12, Dkt. No. 67).
42) Following a disciplinary hearing, Lt. Murphy found Plaintiff guilty of the charges and imposed 30 days in keep-lock
confinement (two of which were served pre-hearing), and a loss of packages and commissary for 30 days. (Jones Decl. ¶ 13,
Dkt. No. 59-8). Plaintiff admits this fact. (Plaintiff's Aff., pgs. 13-14, ¶ 12, Dkt. No. 67; Dkt. No. 67-2, pgs. 8-11).
43) Plaintiff did not file a grievance regarding the June 7, 2020 MBR, nor did he appeal any such grievance to CORC. (Seguin
Decl., ¶ 9, Dkt. No. 59-12; Cutler Decl., ¶¶ 14-19, Dkt. No. 59-3). Plaintiff denies this fact. (Plaintiff's Aff., pgs. 14-15, ¶ 14,
Dkt. No. 67).
II. Exhaustion of Remedies
*8 The Prison Litigation Reform Act (“PLRA”) governs federal civil rights litigation by inmates. Under the PLRA, “[n]o
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). “[T]he 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, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002).
“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 he or she is confined. See Jones v. Bock, 549 U.S. 199, 218, 127
S.Ct. 910, 166 L.Ed.2d 798 (2007). Therefore, “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).
A. Plaintiff's Position Concerning the Grievance Process
Plaintiff does not argue that Great Meadow lacked an established grievance process. To the contrary, Plaintiff's evidence,
and the documentary evidence produced by Defendants, establish that Plaintiff was familiar with the grievance process. In
addition to summarily stating that he filed grievances regarding every claim in his complaint (Plaintiff's Aff., pg. 14, ¶14),
Plaintiff's argument regarding exhaustion is that “Great Meadow Correctional Facility's grievance committee is always throwing
grievances away, not filing them or making them disappear.” (Id.). Plaintiff continues, “[f]or example, if you compare the
number of grievances filed at Great Meadow by Plaintiff, to those that CORC has, you'll see that CORC has more grievances
on record than they have filed at Great Meadow.” (Id.).
Plaintiff also offers the affidavit of Mr. Herne (an incarcerated individual as of June 8, 2020), who states, “I would like to add
that filing a grievance complaint here in Great Meadow Correctional Facility is futile and pointless. I've tried to file a grievance
in the past, here, and it was never filed and I was never called for a grievance hearing or given a grievance number.” (Herne
Affidavit, Dkt. No. 67-2, pg. 14). Mr. Herne offers, without specifics, that there are other inmates who have had the same
experience, and he confirms that he heard this complaint from Plaintiff. (Id.).
B. Plaintiff's Position Concerning the Filing of Specific Grievances
Plaintiff summarily states that he “filed grievances with respects (sic) to all the claims alleged in the complaint.” (Plaintiff's
Aff., pg. 14, ¶14; Dkt. No. 67). However, Plaintiff does not specifically identify copies of these grievances. 6 Plaintiff filed a
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collection of documents as Exhibit “H” to his affidavit. (Dkt. No. 67-2, pgs. 15-33). Again, Plaintiff does not describe what
these documents are, and how they relate to his claims. They are simply attached.
One of the documents included in Exhibit “H” purports to be a letter dated January 8, 2020, from Plaintiff to the IGRC, with a
reference line “Grievance Complaint.” (Id., pgs. 16-17). Plaintiff provides no explanation or argument about this document and
Defendants do not address it. The content of the letter describes some of the allegations that Plaintiff has made in his complaint.
*9 The next document Plaintiff filed is a Great Meadow's form, which seems to have been completed by Donita McIntosh,
First Deputy Superintendent, and refers to an “inmate note dated 1/11/20,” which states “your complaint has been referred to
the Inmate Grievance Program.” (Id., pg. 18). Again, Plaintiff provides no details concerning this document, and Defendants
have again not addressed it. Plaintiff has not provided an “inmate note” dated January 11, 2020, so the Court is left to guess
whether the January 8, 2020 letter is the “inmate note.” Finally, if this is a “grievance,” it does not seem to have been captured
by Director Seguin in the search report. (Seguin Decl., ¶ 8, Dkt. No. 59-12).
Exhibit “H” also includes a letter from Plaintiff to the IGRC dated January 28, 2020, which refers to a grievance filed on
January 11, 2020, regarding “harassment and false misbehavior reports.” (Dkt. No. 67-2, pg. 19). The content of the January
11, 2020 letter does not match the content of the January 28, 2020 letter. Plaintiff does not clarify the purpose of the letters,
and Defendants are likewise silent regarding the same. There is also a letter to the IGRC that refers to the January 11, 2020
grievance and purports to concern an appeal to the CORC. (Dkt. No. 67-2, pg. 20).
There are also letters included in Exhibit “H” that refer to “grievance appeals.” (Dkt. No. 67-2, pgs. 22, 23, 24, 26, 27, 28,
31). There is no indication that these letters were filed or delivered by Plaintiff in accordance with grievance procedures, and
Plaintiff provides no explanation. 7 Again, Defendants have also not provided any information in their reply papers concerning
these documents. The documents at Dkt. Nos. 67-2, pages at 21 and 29 have blanks, and Plaintiff provides no explanation about
them. The letter at Dkt. No. 67-2, page 25, concerns a “grievance complaint” and the content relates to Plaintiff's claims, but
again, Plaintiff provides no details concerning the document, and again, Defendants offer nothing in reply.
The last of the documents attached as Exhibit “H” to Plaintiff's affidavit is a form prepared by the IGRC office dated June 18,
2020, with the subject line “Your Grievance Number” that refers to a grievance pertaining to “Tier 2.” (Dkt. No. 67-2, pg. 32).
The grievance document was not identified or provided by Plaintiff. Whatever the content of the grievance, it was considered
by the IGRC, which dismissed and closed the grievance. (Dkt. No. 67-2, pg. 33). Plaintiff indicated his desire to appeal that
decision on the IGRC form. (Id.). Neither party has provided any information about these documents.
C. Defendants’ Position Concerning the Grievance Process
Alexandria Cutler (not a party in this action) is employed at Great Meadow as the Incarcerated Grievance Program (“IGP”)
Supervisor, a position she has held since 2018. (Cutler Decl., ¶ 1, Dkt. No. 59-3). Ms. Cutler attests to the details of the IGP at
Great Meadow, that the IGP was fully functioning at Great Meadow during the relevant period, and the incarcerated individual
orientation program that includes a presentation by a representative from the Incarcerated Grievance Resolution Committee
(“IGRC”) about the grievance process. (Cutler Decl., ¶ 5, 17, Dkt. No. 59-3). She further avers that Plaintiff completed the
“Facility Orientation” at Great Meadow on June 17, 2018. (Cutler Decl., ¶ 5, Dkt. No. 59-3). Ms. Cutler also attests to the
procedures associated with the grievance process. Ms. Cutler states that the allegations against Defendants, except for Plaintiff's
Fourteenth Amendment substantive due process claims against Defendant Scarlotta and Plaintiff's Fourteenth Amendment
procedural due process claim against Defendant Reynolds, are the proper subject for a grievance under 7 N.Y.C.R.R. § 701.2(a).
(Cutler Decl., ¶¶ 14, 15, Dkt. No. 59-3).
*10 Ms. Cutler states that she conducted a review of Great Meadow's grievance activity for the period between January 2019
and February 2020 and found four grievances filed by Plaintiff at Great Meadow. (Cutler Decl., ¶ 16, Dkt. No. 59-3). She
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authenticated a record of that search, attaching it to her declaration. (Id.). The grievance filed on July 8, 2019, is titled “Alleged
Threats” and the grievance filed on October 17, 2019, is titled “Retaliation for Grievances.” Id.
Rachel Seguin (not a party in this action), is Director of the Incarcerated Grievance Program (“IGP”) for DOCCS. (Seguin Decl.,
¶ 1, Dkt. No. 59-12). Director Seguin's declaration explains the DOCCS IGP and the appeal process, which culminates with the
Central Office Review Committee (“CORC”). (Seguin Decl., ¶¶ 4-8, Dkt. No. 59-12). As the IGP's custodian of records, Director
Seguin searched for and produced a record titled “Inmate Grievance – Active Cases” and one titled “Inmate Grievance – Closed
Cases.” (Seguin Decl., Exhibit “A,” pgs. 7-9, Dkt. No. 59-12). She identified only two appeals to CORC by Plaintiff while he
was at Great Meadow, neither of which concern the allegations against the Defendants. (Seguin Decl., ¶ 13, Dkt. No. 59-12).
Records such as those provided by Rachel Seguin and Alexandria Cutler, both of whom who have personal knowledge of the
inmate grievance and appeal processes at correctional facilities, have been found sufficient to support summary judgment based
on an incarcerated individual's failure to exhaust administrative remedies. See Houston v. Coveny, No. 14-CV-6609, 2020 WL
2494439, at *3 (W.D.N.Y. May 14, 2020) (finding CORC appeal log report accompanied by certification of DOCCS official
certifying the log report was made in the regular course of business and employees engaged in creating the report had a duty to
truthfully record the events maintained therein). Here, however, and for the reasons more fully articulated below, the declarations
of Alexandria Cutler and Rachel Seguin are an insufficient basis on which to grant Defendants’ summary judgment motion
regarding exhaustion.
D. Analysis of Exhaustion Defense
i. Claims Were Subject to Grievance Process
Based upon the various documents attached as Exhibit “H” to Plaintiff's affidavit, it appears that the parties agree that except
for the claims against Defendants Reynolds and Scarlotta, Plaintiff's claims, if accepted as true, are the proper subject for a
grievance under DOCCS's grievance procedures outlined in 7 N.Y.C.R.R. § 701.1 et seq. Plaintiff was housed at Great Meadow
from March 16, 2018, until July 3, 2020. (Cutler Decl., ¶ 17, Dkt. No. 59-3). During that time, Great Meadow had a fully
functioning IGP that was available to incarcerated individuals. (Id.) Further, incarcerated individuals at Great Meadow had and
continue to have full access to CORC in which to appeal facility-level grievance determinations. (Id.).
ii. Administrative Remedies Were “Available” to Plaintiff
The PLRA provides that no action shall be brought “until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a) (emphasis added). Plaintiff essentially argues that the exhaustion of remedies requirement of the PLRA is
not applicable in this case because the grievance process was not available to him at Great Meadow, as the grievance procedures
were not “capable of use” to obtain “some relief for the action complained of.” Booth v. Churner, 532 U.S. at 731, 738, 121
S.Ct. 1819 (2001); see also Ross, 578 U.S. 632, 642, 136 S.Ct. 1850, 195 L.Ed.2d 117 (2016).
*11 “First, as Booth made clear, 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.” Ross, 578 U.S. at 643, 136 S.Ct. 1850 (citing Booth, 532 U.S. at 736, 738, 121 S.Ct. 1819). “Next,
an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use. In this situation, some
mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.” Ross, 578 U.S. at 643–44, 136 S.Ct.
1850 “And finally, the same is true when prison administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 644, 136 S.Ct. 1850.
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Here, Plaintiff argues that Great Meadow failed to record and/or lost grievances, and that the difference between the number of
appeals to the CORC and the number of filed grievances proves that Great Meadow did not have a fair or functioning grievance
system. (Plaintiff's Aff., pg. 14, ¶ 14, Dkt. No, 67). That another incarcerated individual attested to the same unsubstantiated
conclusions does not manifest a triable issue of fact. As of March 29, 2024, Plaintiff had recorded 49 appeals to CORC. (Seguin
Decl., Exhibit “A,” pgs. 6-9, Dkt. No. 59-12). Six of those appeals were made from grievances filed by Plaintiff at Great
Meadow. Plaintiff did not challenge this evidence.
Plaintiff's reliance on the fact that the grievance process was “unavailable” to him, is belied by the documentary evidence. No
trier of fact could look at the record and conclude anything else. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348.
The uncontroverted documentary evidence shows that Great Meadow had a functioning grievance system, including appeals,
and that Plaintiff availed himself of the same when it suited him. The uncontroverted evidence also shows that the grievance
system was able to, and did in fact, provide remedies to aggrieved inmates. In addition, the record of Plaintiff's use of the
grievance process proves that the system could be readily navigated by him. And finally, there is no specific evidence to suggest
that either Plaintiff's or Mr. Herne's efforts to use the grievance system were thwarted “through machination, misrepresentation,
or intimidation.” Ross, 578 U.S. at 644, 136 S.Ct. 1850.
iii. Whether Plaintiff Exhausted his Administrative Remedies Cannot be Determined on this Motion
Only after an incarcerated individual confined in a DOCCS facility has properly exhausted all three levels of review afforded by
the IGP may he or she seek relief pursuant to Section 1983 in federal court. See McCants v. Cannon, No. 9:08-CV-616 (LEK/
DEP), 2008 WL 4936821, at *3, (N.D.N.Y. Nov. 18, 2008) (Plaintiff must complete the exhaustion process prior to commencing
the action) (citations omitted).
Defendants assert that Plaintiff did not file a grievance with respect to any of his claims in this action (Cutler Decl., ¶ 19, Dkt. No.
59-3), nor did Plaintiff appeal the denial of any grievance related to his claims in this action to CORC (Seguin Decl., ¶¶ 13-14,
Dkt. No, 59-12). Further, with respect to Plaintiff's Fourteenth Amendment substantive due process claim against Defendant
Scarlotta, Defendants assert that Plaintiff did not appeal the relevant hearing determination to the Central Office, as is required
to exhaust administrative remedies with respect to that claim. (Cutler Decl., ¶ 22, Dkt. No. 59-3); see also Beauvoir v. Smith,
No. 9:14-cv-1495 (MAD/DEP), 2017 WL 4271636, at *2 (N.D.N.Y. Sept. 26, 2017) (When a Plaintiff presents a claim arising
“directly out of a disciplinary or administrative segregation hearing ... (e.g., a claim of denial of procedural due process), he
exhausts his administrative remedies by presenting his objections in the administrative appeals process, not by filing a separate
grievance instead of or in addition to his ordinary appeal.”) (citations omitted).
*12 Ms. Cutler averred that an incarcerated individual may appeal to the CORC, but of course the decision to appeal is left
with the individual. (Cutler Decl., ¶10, Dkt. No. 59-3). The documentary evidence presented by Ms. Cutler shows that Plaintiff
only filed four grievances while at Great Meadow between January 2019 and February 2020. (Cutler Decl., ¶ 16, Exh. “A,” pgs.
34-36, Dkt. No. 59-3). Plaintiff appealed two of them. (Seguin Decl., ¶ 8, Dkt. No. 59-12) (There were however a total of six
appeals from grievances filed at Great Meadows, including four filed in 2018). Ms. Cutler also stated that the document retention
procedure requires retention of grievance documents for the current year and the previous four calendar years and as of April 1,
2024, the “office ha[d] on file all grievances filed in Great Meadow from January 1, 2020 to the present.” (Cutler Decl., ¶ 12). 8
Interestingly, the grievance record submitted by Director Seguin shows that since 2012, Plaintiff filed fifty grievances at several
facilities, including six at Great Meadow. Two of the grievances filed at Great Meadow are titled “Missing Grievances” and
“Grievance Process.” (Seguin Decl., Exhibit “A,” pgs. 8-9, Dkt. No., 59-12). Neither Plaintiff nor Defendants provide any
details concerning these grievances. In addition, while providing Plaintiff's entire grievance history, Director Seguin only calls
out the period of January 2019 to February 2020 (Seguin Decl., ¶ 13, Dkt. No., 59-12), which does not include the time when
Defendant Jones filed an MBR which is the subject of Plaintiff's claim against her (Jones Decl., ¶ 7, Dkt. No. 59-8), and it also
does not include the dates when the grievances titled “Missing Grievances,” and “Grievance Process” were filed. Regarding
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the two grievances Director Seguin discussed, she indicated that “neither of these grievances address the above-referenced
allegations against the named Defendants.” (Seguin Decl., ¶ 13, Dkt. No., 59-12).
As discussed below, the alleged grievance against Defendant Guyette is the “protected activity” that forms the basis of Plaintiff's
retaliation claims, and the date of this alleged grievance is unstated but if it was filed, it must have been filed before the first
retaliatory event alleged in the complaint, January 2019. It is possible that the 2018 grievances address the alleged Defendant
Guyette grievance. While “possible” is not an evidentiary principle, lacking any discussion, argument or additional evidence
from Defendants to put the issue to rest, it is sufficient, in addition to the some of the other documents filed by Plaintiff, to
recommend an exhaustion hearing.
The documents attached to Exhibit “H” to Plaintiff's affidavit include a facility document completed by Donita McIntosh, First
Deputy Superintendent, dated January 16, 2020. (Plaintiff's Aff., Exhibit “H,” pg. 18, Dkt. No. 67-2). Without any explanation
from the parties, the Court cannot determine whether this is evidence of the filing of a relevant grievance, and whether the
unsigned typed letter from Plaintiff to the IGRC dated January 8, 2020 (Plaintiff's Aff., Exhibit “H,” pgs. 16-17, Dkt. No. 67-2),
is the document to which the form refers, or whether there is another document.
Also attached as Exhibit “H” is a facility document from the IGRC office dated June 18, 2020. (Plaintiff's Decl., Exhibit “H,”
pg. 32, Dkt. No. 67-2). The subject is “Your Grievance Number,” and it confirms receipt of “your grievance that you wrote
pertaining TIER 2.” (Id.) (emphasis added). Defendant Jones filed a MBR on June 7, 2020. The hearing 9 concerning Defendant
Jones's MBR was concluded on June 10, 2020, and Plaintiff was found guilty. (Plaintiff's Aff., Exhibit “H,” pg. 4, Dkt. No.
67-2). Plaintiff filed a written appeal (Plaintiff's Aff., Exhibit “H,” pgs. 8-9, Dkt. No. 67-2), the appeal was acknowledged by
the Superintendent (Plaintiff's Decl., Exhibit “H,” pg. 10, Dkt. No. 67-2), and the hearing decision was affirmed (Plaintiff's Aff.,
Exhibit “H,” pg. 11, Dkt. No. 67-2). None of these documents explain the facility document referring to a grievance around
the time of Defendant Jones's MBR and administrative hearing. Plaintiff provides no explanation, and importantly, neither do
the Defendants.
*13 Defendants’ reply memorandum of law (Dkt. No. 69) does not specifically address any of the documents in Plaintiff's
Exhibit “H,” relying generally on the Seguin Declaration and Cutler Declaration to prove that Plaintiff did not file whatever
documents he asserts he did file. (Dkt. No. 69, pg. 4). This does not, however, explain the facility documents noted above, nor
does Defendants’ failure to address the documents filed by Plaintiff and perhaps to preserve, help the Court accurately address
the exhaustion issues. While these documents may ultimately be proven to be irrelevant, and it may be determined that Plaintiff
has failed to exhaust his administrative remedies concerning each of his claims, the Court is unable to make that determination
on these papers.
For these reasons, the Court recommends that an exhaustion hearing be convened. 10
III. Plaintiff's Retaliation Claims
A. Legal Standard
To state a First Amendment claim for retaliation, an incarcerated person must allege facts plausibly suggesting that (1) the
speech or conduct at issue was protected, (2) the defendant took adverse action against the plaintiff, and (3) there was a causal
connection between the protected conduct and the adverse action. See Holland v. Goord, 758 F.3d 215, 225 (2d Cir. 2014)
(citations omitted). “Regardless of the presence of retaliatory motive, ... a defendant may be entitled to summary judgment if he
can show ... that even without the improper motivation the alleged retaliatory action would have occurred.” Scott v. Coughlin,
344 F.3d 282, 287-88 (2d Cir. 2003) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct.
568, 50 L.Ed.2d 471 (1977)).
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“Although not all oral speech by an inmate constitutes protected activity, some courts within the Second Circuit have determined
that verbal or oral complaints about the conduct of prison officials or conditions of confinement may constitute protected speech
in the context of a First Amendment retaliation claim.” Id.; see also, Mazyck v. Keller, 531 F.Supp.3d 630, 645 (W.D.N.Y.
2021) (finding that plaintiff “plausibly alleged that he engaged in protected activity for purposes of his First Amendment claim”
where the plaintiff alleged to have verbally reported an assault by a correctional officer to a supervisor, and as a result, faced
retaliation); Smith v. Woods, No. 03-CV-480 (DNH), 2006 WL 1133247, at *10 (N.D.N.Y. Apr. 24, 2006) (noting that “the First
Amendment protects, not only the filing of written grievances and complaints, but under some circumstances, the making of
oral complaints to correction officers.”), affirmed, 219 F. App'x 110 (2d Cir. 2007) (summary order) (citation omitted).
With respect to adverse action, the filing of a false misbehavior report that results in some form of punishment that cannot be
labeled as de minimis has been found sufficient to constitute adverse action. See Reed v. Doe No. 1, No. 9:11-CV-250 (TJM/
DEP), 2012 WL 4486086, at *5 (N.D.N.Y. July 26, 2012) (finding that the “filing of a false misbehavior report can qualify
as an adverse action for the purposes of a First Amendment retaliation” where the report resulted in a fourteen-day term in
keeplock confinement), report and recommendation adopted, 2012 WL 4486085 (N.D.N.Y. Sept. 27, 2012); see also Tafari
v. McCarthy, 714 F. Supp. 2d 317, 373 (N.D.N.Y. May 24, 2010) (finding that a misbehavior report that resulted in SHU
confinement constituted an adverse action). A penalty that “would deter a similarly situated individual of ordinary firmness
from exercising ... constitutional rights” is an adverse action. Gill v. Pidlypchak, 389 F.3d 379, 381 (2d Cir. 2004) (quoting
Davis v. Goord, 320 F.3d 346, 353 (2d Cir. 2003)).
*14 The court must keep in mind that claims of retaliation are “easily fabricated” and “pose a substantial risk of unwarranted
judicial intrusion into matters of general prison administration.” Faulk v. Fisher, 545 F. App'x 56, 58 (2d Cir. 2013) (quoting
Bennett v. Goord, 343 F.3d 133, 137 (2d Cir. 2003)). In other words, we must examine prisoners’ claims of retaliation with
“skepticism and particular care.” Rivera v. Goord, 119 F. Supp. 2d 327, 339 (S.D.N.Y. 2000) (quoting Colon v. Coughlin, 58
F.3d 865, 872 (2d Cir. 1995), abrogated on other grounds, Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020)). Accordingly, a
First Amendment retaliation claim must be supported by “specific and detailed factual allegations,” and not stated in “wholly
conclusory terms.” Dolan v. Connolly, 794 F.3d 290, 295 (2d. Cir. 2015) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d
Cir. 1983), overruled on other grounds, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)).
To establish a causal connection between the protected activity and adverse action, a plaintiff must show that “the protected
conduct was a substantial or motivating factor” in a defendant's decision to act against him. Graham v. Henderson, 89 F.3d 75,
79 (2d Cir. 1996). The court may consider several factors in determining whether a causal connection exists between a plaintiff's
protected activity and a prison official's actions. See Baskerville v. Blot, 224 F. Supp. 2d 723, 732 (S.D.N.Y. 2002) (citing
Colon, 58 F.3d at 872-73). Those factors include: (i) the temporal proximity between the protected activity and the alleged
retaliatory act; (ii) the inmate's prior good disciplinary record; (iii) vindication at a hearing on the matter; and (iv) statements by
the defendant concerning his or her motivation. Id. (citing Colon, 58 F.3d at 872-73). “The causal connection must be sufficient
to support an inference that the protected conduct played a substantial part in the adverse action.” Id.
In cases involving allegations of retaliation based on the filing of allegedly false misbehavior reports, “[t]he difficulty lies in
establishing a retaliatory motive.” Webster v. Fischer, 694 F. Supp. 2d 163, 183 (N.D.N.Y. 2010) (citing Barclay v. New York,
477 F.Supp.2d 546, 558 (N.D.N.Y. Mar. 19, 2007)).
B. Defendant McLenithan
1. Facts
Plaintiff alleges that Defendant McLenithan issued him a MBR because Plaintiff threatened to file a grievance against him.
(Dorando Decl., pgs. 24-25, Dkt. No. 59-4; Amended Compl., ¶ 20, Dkt. No. 20). Plaintiff asserts that he asked Defendant
McLenithan for his name and threatened him with the filing of a grievance because Defendant McLenithan allegedly failed to
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open Plaintiff's cell at the same time he opened the other cells so Plaintiff could go to the mess hall. (Plaintiff's Aff., pg. 1, ¶ 3,
Dkt. No. 67). Yet, Plaintiff admits that his cell was opened and that he did go to lunch. (Id.).
Defendant McLenithan confirms that Plaintiff asked for his name on his way back from lunch. He states that Plaintiff was
yelling at him about not having been let out of his cell. Defendant McLenithan states that he was wearing his name badge and
advised Plaintiff of his name. (McLenithan Decl., ¶¶ 5-6, Dkt. No. 59-9). Defendant McLenithan also states that Plaintiff was
agitated and yelling despite being told to stop and made a verbal threat (Plaintiff will “take care of it” next time McLenithan
was out of the console). (Id.). Defendant McLenithan issued the MBR on March 23, 2019. No other witnesses are noted in the
MBR. (McLenithan Decl., ¶5, Dkt. No. 59-9).
*15 A hearing on the MBR was conducted by Defendant Scarlotta. Plaintiff was found guilty of each charge. (Dkt. No. 67-1,
pg.3). On appeal, Plaintiff asserted that Defendant McLenithan “attempted to starve me by not opening my cell for lunch.” (Dkt.
No, 67-1, pg. 6, ¶1). Yet, Plaintiff admits in his affidavit that his cell was opened and that he did go to the mess hall for lunch.
(Plaintiff's Aff., pg. 4, ¶3, Dkt. No. 67) (emphasis added). Plaintiff did not deny stating to Defendant McLenithan that he will
“take care of it,” but rather argues the phrase is “vague and does not constitute a threat.” (Dkt. No. 67-1, pgs. 1-2, ¶ 3).
Defendant McLenithan established that Plaintiff was issued an MBR because Plaintiff was engaging in prohibited conduct,
including harassing and threatening Defendant McLenithan. (McLenithan Decl., ¶¶ 5 – 9, Dkt. No. 59-9). Plaintiff was
subsequently found guilty of the charges in this MBR. (Scarlotta Decl., ¶16, Dkt. No. 59-11). Plaintiff received a penalty of 30
days keeplock confinement, as well as loss of package, phone, and commissary (Id.)
2. Analysis
Defendant McLenithan admits that Plaintiff asked for his name. (McLenithan Decl., ¶6, Dkt. No. 59-9). Defendant McLenithan
states that he does not have a recollection of Plaintiff telling him he planned to file a grievance. (Id.). As Defendant McLenithan
does not argue that Plaintiff did not engage in protected activity, on this record, there is a basis to conclude that Plaintiff's
statement constituted protected activity. See Smith, 2006 WL 1133247, at *10 (N.D.N.Y. Apr. 24, 2006).
Plaintiff has failed, as a matter of law, to show that the protected activity was a substantial or motivating factor in Defendant
McLenithan issuing the MBR. The undisputed evidence proves no causal connection between the protected interest and the
adverse action, as (1) Plaintiff did not have a good disciplinary record since he had been disciplined on numerous occasions,
including for harassment and threats (Cutler Decl., pgs. 22-34, Dkt. No. 59-3), and (2) Plaintiff was found guilty (not vindicated)
at the disciplinary hearing concerning the subject of the charge made by Defendant McLenithan. (Scarlotta Decl., ¶16, Dkt.
No. 59-11). Plaintiff does not challenge his disciplinary record history, and he also admits that he was found guilty of the
charge. (Plaintiff's Aff., pgs. 5-6, ¶4, Dkt. No. 67). In addition, Plaintiff's admission that he told the officer he “would take
care of it” provides additional support for the charges contained in the MBR. See Chavis v. Struebel, 317 F.Supp.2d 232, 235
(W.D.N.Y. Mar. 29, 2004) (misbehavior report issued against incarcerated individual for threats made to officer). Since plaintiff
is unable to satisfy all three prongs enunciated in Holland for a retaliation claim, the Court recommends that, notwithstanding the
findings in the exhaustion hearing, summary judgment be granted, and that the retaliation claim against Defendant McLenithan
be dismissed with prejudice.
C. Defendant Guyette
1. Facts
Plaintiff alleges that Defendant Guyette issued him a MBR because Plaintiff filed a grievance against him. (Dorando Decl.,
Exhibit “A,” pgs. 30-31, Dkt. No. 59-4; Amended Compl., ¶ 4, Dkt. No. 20). Plaintiff testified that the prior grievance concerned
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activity in the law library and that plaintiff “ended up writing him [Guyette] up because he was in there watching a T.V. that he
wasn't supposed to have.” (Dorando Decl., Exhibit “A”, pg. 30, Dkt. No. 59-4).
The MBR refers to Plaintiff's improper use of a telephone. (Guyette Decl., ¶ 10, Dkt. No. 59-6). The MBR was endorsed by C.O.
Worth as an “other employee witness.” Plaintiff states he was “never on the phone,” that he requested his phone records, and
they showed that he was not on the phone, that Hearing Officer Reynolds agreed with Plaintiff that he was never on the phone,
that Hearing Officer Reynolds stated he was not going to go against his officers and so he agreed to direct only counseling and
a reprimand as a penalty. (Plaintiff's Aff., pg. 6, ¶ 5) (emphasis added). Defendant Guyette states that the phone record was
reviewed at the hearing. (Guyette Decl., ¶14, Dkt. No. 59-6). The written hearing findings states, “the evidence relied upon
was Guyette's misbehavior report” and there is no mention of phone records. (Dkt. No. 67-1, pg. 23). Defendant Reynolds’
declaration says nothing about this hearing. (Reynolds Decl., Dkt. No. 72-1).
*16 On administrative appeal, and contrary to his sworn statement that the phone records showed he was not on the phone,
Plaintiff wrote that the hearing officer “did not produce my phone records.” (Dkt. No., 67-1, pg. 27, ¶4) (emphasis added).
Also on appeal, Plaintiff asserted that “Inmate Thomas testified that I was never on the phone the entire time I was out of my
cell.” (Dkt. 67-1, pg. 26, ¶2). The hearing record does not show that Inmate Thomas gave testimony at this hearing. (Dkt. No.
67-1, pg. 23).
Plaintiff supports his allegation of retaliation with his sworn statement that Defendant Guyette admitted to him and to another
incarcerated individual (Joel Almonte) that the MBR was issued solely as retaliation. (Plaintiff's Aff., pg. 7, ¶ 5, Dkt. No. 67).
Mr. Almonte's January 20, 2020 sworn statement describes a conversation that he allegedly had with Defendant Guyette that
same day. (Dkt. No. 67-1, pg. 30). Mr. Almonte avers that Defendant Guyette stated to him “since you and Henderson want
to write bullshit grievances against me, I'm going to write you a bullshit misbehavior report just like I did to Henderson for
his grievances.” (Id.). Mr. Almonte also states that Defendant Guyette turned to Plaintiff and said, “since you and Almonte
want to write bullshit grievances against me, I'm going to write Almonte a bullshit misbehavior report like I did to you for
your grievances.” (Id.).
Defendant Guyette denies making the statements alleged by Plaintiff about “bullshit grievances” (Guyette Decl., ¶12, Dkt. No.
59-6), and he denies telling any incarcerated individual the substance of the statements attributed to him by Mr. Almonte (Guyette
Decl., ¶¶ 11, 12, Dkt. No. 59-6). Defendant Guyette does not address Plaintiff's deposition testimony about the underlying
grievance, that is, about watching T.V. Defendant Guyette avers that he does not have any personal interest in whether Plaintiff,
or any incarcerated individual filed a grievance against him. (Guyette Decl., ¶ 15, Dkt. No. 59-6). Defendants do not offer
any documentary evidence to show whether Mr. Almonte had written any grievances against Defendant Guyette or whether
Defendant Guyette had written any MBRs against Mr. Almonte.
2. Analysis
Again, Defendant does not argue that Plaintiff did not engage in protected activity, presumably because if Plaintiff did file a
grievance (which is denied by Defendants), that act would constitute protected activity.
Defendant Guyette also does not argue that there was no adverse action. With respect to adverse action, the filing of a false
misbehavior report that results in some form of punishment that cannot be labeled de minimis has been found sufficient to
constitute adverse action. See Reed v. Doe No. 1, No. 9:11-CV-250 (TJM/DEP), 2012 WL 4486086, at *5 (N.D.N.Y. July 26,
2012). Here, the hearing officer's imposition of counseling and a reprimand as punishment for the phone program violation is de
minimis. (Dkt. 59-6 at ¶14). See McFadden v. Friedman, No. 9:12-CV-0685 (GTS/CFH), 2015 WL 5603433, at *11 (N.D.N.Y.
Aug. 13, 2015) (Tier I hearing punishment that plaintiff be “counseled and reprimanded,” without more, was held to be de
minimis, and, therefore, did not constitute an “adverse action”) report recommendation adopted, 2015 WL 5603433 (N.D.N.Y.
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Sept. 23, 2015); see also Monko v. Cusack, No. 9:11-CV-1218 (GTS/TWD), 2013 WL 5441724, at *11 (N.D.N.Y. Sept. 27,
2013) (finding that the penalty of “counseling and reprimand” was insufficient to establish adverse action).
*17 Because Plaintiff has failed to prove that he suffered an adverse action from Defendant Guyette's MBR, the Court need
not determine whether there is a causal connection between Plaintiff's protected conduct and defendant Guyette's actions. See
McFadden, 2015 WL 5603433, at *12. Accordingly, there is no genuine issue of material fact as to Defendant Guyette's actions,
and it is recommended that Defendants’ motion for summary judgment be granted regardless of the outcome of the exhaustion
hearing.
D. Defendants Popp, Hamel, Fraser, Reynolds
1. Facts
Plaintiff alleges the following regarding the loss of his library job or “program”:
1. On January 1, 2020, Defendant Hamel interviewed Plaintiff about the grievance that he filed against Defendant Guyette.
(Plaintiff's Aff., pg. 8, ¶ 6, Dkt. No. 67).
2. Defendant Hamel threatened Plaintiff saying, “I'm going to take your program in the law library away from you for these
grievances.” (Id.).
3. On January 8, 2020, at the law library, Defendant Popp said, “I don't want to do this but you're fired. It's over my head
and coming all the way up the chain of command from Captain Fraser. Fraser wants me and Sgt. Hamel to put something in
writing to fire you for your grievances. He wants me and Sgt. Hamel to write a ticket but you won't be keeplock.” (Plaintiff's
Aff., pg. 8, ¶ 7, Dkt. No. 67).
4. On January 9, 2020, Defendant Popp stated to Plaintiff, “right now you have this morning and afternoon to get all of your
stuff out of the law library. If Sgt. Hamel tells me to write you up, then I'll have to write you a ticket, but as he explained it
to me, you won't be keeplock.” (Plaintiff's Aff., pgs. 8-9, ¶ 8, Dkt. No. 67)
5. Later that morning, Defendant Hamel went to Plaintiff's cell and demanded his program card, complaining about “three
more grievances the next day,” and stating, among other things, “it only gets worse for you, like I told you.” (Id.).
6. Later that day, Defendant Popp came to the law library and stated, among other things, to Plaintiff, “Sgt. Hamel and
Fraser told me to write you a ticket but, as I said, you're not keeplock as of now,” noting that the ticket related to writing a
grievance on the computer and handing it out to a bunch of inmates (referred as “shot gunning grievances”), “I guess against
Guyette.” (Id.).
7. On January 14, 2020, Plaintiff was served with Defendant Popp's MBR, “back dated” to January 8, 2020. (Plaintiff's Aff.,
pg. 9, ¶ 9, Dkt. No. 67).
8. Defendant Reynolds presided over the disciplinary hearing on January 15 and 18, 2020, admitting to Plaintiff, “they just
want me to take your program.” (Id.).
9. “While Plaintiff denys (sic) the allegations in the misbehavior report, even if he was “shot gunning” grievances for himself
or others, he has a right to do so.” “As a law library clerk I have a right to help others with grievances.” (Dkt. No. 74, pgs.
2-3) (emphasis added).
In summary, Plaintiff alleges that Defendant Popp issued him a false MBR at the direction of Defendants Hamel and Fraser
in retaliation for a grievance Plaintiff says he filed against Defendant Guyette (presumably the alleged grievance concerning
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watching T.V.). Plaintiff also alleges that Defendant Reynolds found him guilty of the charges in the MBR in retaliation for
filing a grievance against Defendant Guyette. Defendants specifically deny the statements attributed to them.
2. Analysis
The protected activity alleged by Plaintiff is the grievance he allegedly filed against Defendant Guyette. Defendants do not
argue the absence of protected activity. The same analysis of the alleged Defendant Guyette grievance is applicable. See Section
IV(C)(2), supra.
*18 Considering whether a causal connection exists between the protected activity and adverse action, first, with respect to
temporal proximity, as discussed above, Plaintiff has failed to indicate when he filed the grievance against Defendant Guyette,
which precludes the inference of a causal relationship. See Dawes, 239 F.3d at 492. Second, Plaintiff had 10 disciplinary
convictions prior to this MBR being issued. (Cutler Decl., pgs. 22-24, Dkt. No. 59-3). Third, Plaintiff was found guilty of one
of the charges made against him in the MBR.
Regarding the fourth factor, Defendants Popp, Hamel, Fraser, and Reynolds deny making the statements alleged by Plaintiff
detailed above, and they state that they do not have any personal interest in whether Plaintiff, or any incarcerated individual,
filed a grievance against Defendant Guyette. (Popp Decl., ¶ 12, Dkt. No. 59-10; Hamel Decl., ¶ 19, Dkt. No. 59-7; Fraser
Decl., ¶ 18, Dkt. No. 59-5; Reynolds Decl., ¶¶ 24-25, Dkt. No. 72-1). The Court is skeptical of Plaintiff's version of the various
discussions with these Defendants, even though they are specific as to date, time, and place. See Dawes, 239 F.3d at 491; see
also Davis, 320 F.3d at 352 (The court is cautioned to approach claims of retaliation with “skepticism and particular care”). It
is, of course, not the court's prerogative to resolve material issues of fact and credibility on a summary judgment motion, but the
court may grant judgment when the defendant satisfies his burden of establishing that the adverse action would have been taken
in the absence of improper motive. See Graham, 89 F.3d at 79; see also Lowrance v. Achtyl, 20 F.3d 529, 535 (2d Cir. 1994).
The specific evidence submitted by Defendants (and generally denied by Plaintiff) establishes that Plaintiff was using the library
computers and equipment to write a grievance against another correction officer to circulate to other incarcerated individuals
for filing. (Popp Decl., at ¶¶ 7, 18, Dkt. No. 59-10). This was a violation of facility rules. (Popp Decl., at ¶¶ 9-11, Dkt. No.
59-10). According to Defendant Popp, the misbehavior report was based upon his direct observations made at approximately
6:30 p.m. on January 8, 2020. (Popp Decl., ¶¶ 7-11, 18, Dkt. No. 59-10). Plaintiff was found guilty of one of the charges at a
disciplinary hearing conducted by Defendant Reynolds which was completed on January 18, 2020 (Reynolds Decl., ¶ 18, Dkt.
No. 72-1). Plaintiff was sentenced to 15 days in keeplock confinement, and loss of commissary and package privileges (Id.). 11
Thus, regardless of any alleged retaliatory motive, a trier of fact could reasonably conclude, notwithstanding Plaintiff's general
denial, and considering his written assertion that even if he was shot gunning grievances, he “had a right to so,” that Plaintiff
committed the offenses charged in the MBR and therefore the MBR was not filed against him for a retaliatory purpose. See
Graham, 89 F.3d at 79. On this record, a trier of fact could not reasonably conclude that the Plaintiff did not commit the subject
offense for which he was found guilty. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348.
Accordingly, as Plaintiff is unable to satisfy all three prongs enunciated in Holland for a retaliation claim, and regardless of
the outcome of the exhaustion hearing, the Court recommends that the motion for summary judgment dismissing the retaliation
claims against Defendants Popp, Hamel, Fraser, and Reynolds be granted.
E. Second Claim against Defendant Popp
1. Facts
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*19 Plaintiff's second retaliation claim against Defendant Popp alleges that Defendant Popp provoked an unidentified
incarcerated individual to attack Plaintiff on January 24, 2020, “in retaliation for [p]laintiff's grievances.” (Dorando Decl.,
Exhibit “A,” pgs. 41-43, Dkt. No. 59-4; Plaintiff's Aff., pg., 11, ¶ 10, Dkt. No. 67). Plaintiff claims that a third unidentified
incarcerated individual told him that Defendant Popp provoked the attack. (Plaintiff's Aff., pg. 11, ¶ 10, Dkt. No. 67; Amended
Compl., pg. 7, Dkt. No. 20; Dorando Decl., Exhibit “A,” pgs. 41-43, Dkt. No. 59-4).
2. Analysis
While not argued by Defendant Popp, there is no proven protected activity. Plaintiff simply states that Defendant Popp's alleged
provocatory statements were made in “retaliation for [p]laintiff's grievances.” Plaintiff has offered no evidence to establish that
Defendant Popp was aware of these undefined grievances. There is therefore insufficient evidence to invoke consideration of
the temporal proximity element. Dawes, 239 F.3d at 493. Second, Defendant Popp concedes the adverse action element (the
attack and injury) and defends this claim by relying upon the failure of Plaintiff's evidence concerning the events he describes.
Plaintiff does not identify who attacked him, or the name of the incarcerated individual that informed him of the reasons why
Plaintiff was attacked. There is no admissible evidence that Defendant Popp procured this attack, as Plaintiff's claim rests
entirely on hearsay from unnamed declarants and an alleged statement by Defendant Popp saying, “that's what happens when
you write grievances” (Plaintiff's Aff., pg. 13, ¶ 11, Dkt. No. 67; Amended Compl., pg. 8, Dkt. No. 20), which Defendant Popp
denies (Popp Decl., ¶ 25, Dkt. No. 59-10). See Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919,
924 (2d Cir. 1985) (party cannot rely on inadmissible hearsay in opposing a motion for summary judgment); see also Selvam
v. Experian Info. Sols., Inc., 651 F. App'x 29, 31-32 (2d Cir. 2016) (quoting Burlington, 769 F.2d at 924) (the party opposing
summary judgment “cannot rely on inadmissible hearsay in opposing a motion for summary judgment[ ] absent a showing that
admissible evidence will be available at trial.”) (emphasis in original). Plaintiff has failed to show that admissible evidence
will be available at trial. Further, even if Defendant Popp made the statement attributed to him (Popp Decl., ¶¶ 23-25, Dkt. No.
59-10), there is no indication from the alleged statement itself that implicates that he procured the attack.
Defendant Popp has met his burden establishing his entitlement to summary judgment, and Plaintiff has failed in his burden
to come forward with evidence in admissible form that there are triable material issues of fact regarding this claim. See Yuyan
Lin v. Amazon.Com Servs., LLC, No. 21-CV-6203, 2024 WL 4266008, at *4 (E.D.N.Y. Sept. 23, 2024). The Court therefore
recommends that, regardless of the outcome of the exhaustion hearing, summary judgment be granted dismissing this claim
with prejudice against Defendant Popp.
F. Defendant Jones
1. Facts
Plaintiff alleges that Defendant Jones issued him a MBR on June 7, 2020, 12 charging him with unauthorized exchange, because
Plaintiff's filed unspecified grievances against unspecified officers. (Dorando Decl., Exhibit “A,” pgs. 44-45, Dkt. No. 59-4;
Plaintiff's Aff., pg. 14, ¶ 12, Dkt. No. 67; Amended Compl., pg. 8, Dkt. No. 20).
*20 Defendant Jones established that Plaintiff was engaging in the prohibited conduct of unauthorized exchange. (Jones Decl.,
¶¶ 8-10, Dkt. No. 59-8). These charges were eventually determined to be founded, and a penalty was imposed by hearing officer
Lt. Murphy. (Jones Decl., Dkt. No. 59-8; Dkt. No. 59-3, pg. 22; Dkt. No. 67-2, pg. 4) The hearing decision was affirmed on
appeal. (Dkt. No. 67-2, pg. 11).
Regarding statements made by Defendant Jones, Plaintiff filed an affidavit signed by Richard Herne on June 8, 2020, describing
a conversation he alleges to have had with Defendant Jones on June 7, 2020, during which he asked her “why did you falsify a
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misbehavior report against my neighbor Henderson saying he passed something when I know he did not, as I was standing on my
gate the whole time chow was running?” Mr. Herne continues, “She responded, ‘because Henderson likes to write grievances
against my officers.’ ” (Dkt. No. 67-2, pg. 13). Defendants’ reply does not specifically address this affirmation, but Defendant
Jones did specifically deny this exchange. (Jones Decl., ¶11, Dkt. No. 59-8).
2. Analysis
Plaintiff again fails to provide any details concerning the protected activity that was the alleged predicate for the alleged
retaliatory action. As discussed above, this failure precludes Plaintiff's claim. Defendant Jones, however, does not argue a lack
of protected activity, relying instead on the position that Plaintiff cannot establish a causal connection between the assumed
protected activity and the issuance of the MBR.
Considering the causal connection factors, first, the temporal proximity element of the causal connection standard is lacking, as
Plaintiff fails to offer any details about these unspecified grievances or when they were filed. Second, Plaintiff was disciplined
on 10 occasions prior to Defendant Jones issuing Plaintiff this MBR. (Cutler Decl., pgs. 22-24, Dkt. No. 59-3). Third, Plaintiff
was not vindicated at a hearing concerning these charges. (Jones Decl., Dkt. No. 59-8; Cutler Decl., pg. 22, Dkt. No. 59-3).
The fourth factor concerning Defendant Jones's statements, Mr. Herne's affidavit and Plaintiff's sworn statement create issues of
credibility concerning Defendant Jones's motive. If the Court finds that Plaintiff exhausted his administrative remedies regarding
his claim against Defendant Jones, the Court recommends that summary judgment be denied.
IV. Plaintiff's Excessive Force and Failure to Protect Claims Against Defendant Popp
A. Legal Standard
i. Excessive Force
Incarcerated individuals enjoy Eighth Amendment protection against the use of excessive force and may recover damages under
42 U.S.C. § 1983 for a violation of those rights. See Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 117 L.Ed.2d 156
(1992). To sustain a claim of excessive force, a plaintiff must establish both the objective and subjective elements of an Eighth
Amendment claim. See Blyden v. Mancusi, 186 F.3d 252, 262 (2d Cir. 1999); see also Romano v. Howarth, 998 F.2d 101, 105
(2d Cir. 1993).
To satisfy the objective element of the constitutional standard for excessive force, a defendant's conduct must be “inconsistent
with the contemporary standards of decency.” Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)
(citation omitted); see also Hudson, 503 U.S. at 9, 112 S.Ct. 995. The malicious use of force to cause harm constitutes a per
se Eighth Amendment violation, regardless of the seriousness of the injuries. See Blyden, 186 F.3d at 263 (citing Hudson, 503
U.S. at 9, 112 S.Ct. 995). “The Eighth Amendment's prohibition of ‘cruel and unusual’ punishments necessarily excludes from
constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort repugnant to the
conscience of mankind.” Hudson, 503 U.S. at 9-10, 112 S.Ct. 995 (citations omitted). “Not every push or shove, even if it may
later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.” Sims v. Artuz, 230 F.3d
14, 22 (2d Cir. 2000) (citation omitted). With respect to this element, the law is clear that “a claim of excessive force may be
established even if the victim does not suffer ‘serious’ ... or ‘significant’ injury, ... provided that the amount of force used is more
than ‘de minimis,’ or involves force that is ‘repugnant to the conscience of mankind.’ ” Hudson, 503 U.S. at 7-10, 112 S.Ct. 995.
*21 The subjective element requires a plaintiff to demonstrate the “necessary level of culpability, shown by actions
characterized by wantonness.” Id., at 21, 112 S.Ct. 995 (citation omitted). The wantonness inquiry “turns on ‘whether force
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was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.’ ” Id. (quoting
Hudson, 503 U.S. at 7, 112 S.Ct. 995). In determining whether defendants acted in a malicious or wanton manner, the Second
Circuit has identified five factors to consider:
the extent of the injury and the mental state of the defendant; the need for the application of force;
the correlation between that need and the amount of force used; the threat reasonably perceived by the
defendants; and any efforts made by the defendants to temper the severity of a forceful response.
Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003).
ii. Failure to Intervene
To prevail on a claim of failure to intervene under Section 1983, a plaintiff must show that the defendant saw and had reason
to know that: (1) excessive force was being used, or a person was being wrongfully arrested, or a constitutional violation was
being committed; and (2) the officer had a realistic opportunity to intervene and prevent the harm from occurring. See Universal
Calvary Church v. City of N.Y., No. 96-CV-4606, 2000 WL 1538019, at *9 (S.D.N.Y. Oct. 17, 2000) (citing Anderson v. Branen,
17 F.3d 552 (2d Cir. 1994)); see also O'Neill v. Krzeminski, 839 F.2d 9, 11–12 (2d Cir. 1988) (affirming grant of summary
judgment with respect to a claim based on excessive force an officer “had no realistic opportunity to attempt to prevent”).
B. Analysis
Plaintiff's claims for excessive force and failure to intervene arise out of his allegations that: (1) Defendant Popp falsely told
another law library clerk that Plaintiff was the cause of the clerk losing his position in the library, (2) Defendant Popp used this
false information to provoke the clerk to attack Plaintiff, (3) the clerk approached Plaintiff and told him what Defendant Popp
had said, and (4) sometime thereafter, an unidentified incarcerated individual told Plaintiff that the clerk had offered money
for someone to attack Plaintiff. (Amended Compl., pg. 7, Dkt. No. 20; Plaintiff's Aff., pg. 11, ¶ 10, Dkt. No. 67). As a result,
Plaintiff alleges that he was attacked and injured in a fight, which resulted in a MBR being issued against him in January 2020.
(Amended Compl., pg. 8, Dkt. No. 20; Plaintiff's Aff., pgs. 12-13, ¶ 11, Dkt. No. 67).
Plaintiff also alleges that when he confronted Defendant Popp and accused him of provoking the clerk to attack him, Defendant
Popp responded, “well, that's what happens when you write grievances” and walked away. (Plaintiff's Aff., pgs. 12-13, ¶ 11,
Dkt. No. 67). Defendant Popp denies each of Plaintiff's allegations. (Popp Decl., ¶¶ 20-25, Dkt. No. 59-10).
Plaintiff provides no evidence in admissible form, nor does he offer the names of the unidentified individuals and a proffer that
he could offer this evidence in admissible form at trial. See Fed. R. Civ. P. at 56(c). The multiple levels of hearsay statements
are insufficient to meet his burden in responding to the motion for summary judgment. See Burlington Coat Factory Warehouse
Corp., 769 F.2d at 924.
Furthermore, Plaintiff's assertions about what Defendant Popp said, even if true, do not show that Defendant Popp knew of, and
disregarded, a significant risk of injury to Plaintiff. What Plaintiff describes is a collection of rumors and, even if Defendant Popp
started the rumors, “the spreading of rumors alone does not amount to a constitutional violation.” Williams v. Muller, No. 98-
CV-2001, 2001 WL 936297, at *4 (S.D.N.Y. Aug. 17, 2001). Plaintiff fails to present admissible evidence that Defendant Popp
intended to incite another individual to harm Plaintiff, or that he was deliberately indifferent to a substantial risk to Plaintiff's
safety. See Bouknight v. Shaw, No. 8-CV-5187, 2009 WL 969932, at *4 (S.D.N.Y. Apr. 6, 2009). There is simply no competent
evidentiary record upon which a rational juror could find a triable issue of material fact regarding these alleged statements.
Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348.
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*22 Accordingly, the Court recommends that regardless of the outcome of the exhaustion hearing, summary judgment be
granted dismissing Plaintiff's claim for excessive force/failure to intervene against Defendant Popp.
V. Plaintiff's Procedural Due Process Claims Against Defendant Reynolds Regarding Removal From Law Library
Program
A. Liberty Interest Regarding Removal Procedure
Plaintiff asserts 13 that he was denied due process when he was terminated from his law clerk position in the law library because
the hearing officer did not have the authority to do so, citing 7 NYCRR 253.7. (Dkt. No. 74, pg. 2). 14 Plaintiff was temporarily
suspended from the position by Defendant Hamel on January 8, 2020, when the MBR was issued. (Hamel Decl., ¶ 15, Dkt.
No. 59-7; Popp Decl., ¶ 12, Dkt. No. 59-10). 15 Plaintiff was removed from his position in the law library on January 26, 2020
(Cutler Decl., pg. 14, Dkt. No. 59-3).
Plaintiff argues that only a Tier III Superintendent's Hearing Officer can make a recommendation for removal from a program.
(Dkt. No. 74, pg. 2). Characterizing his claim under applicable law, the DOCCS regulations confer upon Plaintiff a liberty interest
in not having a hearing officer remove him from his law library program. The regulations cited by Plaintiff (7 N.Y.C.R.R. Parts
253 and 254) do not support the conclusion that the recommendation for removal can only come from a Tier III Superintendent's
Hearing Officer, but Part 253 does note that the hearing officer is not empowered to impose loss of program as a penalty.
Defendant Reynolds agrees with Plaintiff that he was without authority to remove him from his position in the law library
and that only the Deputy Superintendent of Programs (“DSP”) could do so. (Reynolds Decl., ¶20, Dkt. No. 72-1). Defendant
Reynolds states that he could only recommend removal and mistakenly included “remove from program” in the penalty section
when it should have been added on the next page in the “special instruction and recommendations” section. (Reynolds Decl., ¶¶
20-22, Dkt. No. 72-1). Defendant Reynolds also avers that Plaintiff would not have been removed from the law library program
if the DSP did not approve. (Reynolds Decl., ¶ 22, Dkt. No. 72-1).
Lisa Stickney, the DSP at the relevant time, states under oath that none of the Defendants had the authority to remove Plaintiff
from the law library position and that only she had the authority to do so in accordance with Directive 4803. (Stickney Decl.,
¶¶ 4, 6, 10, 11, Dkt. No. 59-13). 16 She states under oath that her decision regarding Plaintiff was “motivated solely by the
mandates of [her] position and that the other Defendants were not involved in the ‘decision to remove [p]laintiff from his
program.’ ” (Stickney Decl., ¶ 11, Dkt. No. 59-13). Thus, the procedural protections provided by DOCCS regarding the remedy
were afforded by Defendants, as Plaintiff's liberty interest in not having a hearing officer remove him from his law library
program were protected. 17
B. Due Process Claim Against Defendant Reynolds Regarding Disciplinary Hearing
*23 Plaintiff admits being served with a copy of the MBR on January 14, 2020. (Plaintiff's Aff., pg. 9, ¶ 9, Dkt. No. 67;
Reynolds Decl., ¶ 11, Exhibit “A”). Plaintiff admits that a hearing was held on January 15 and 18, 2020, that he “pled not guilty
to all rule violations and placed several procedural due process violations on the record.” (Plaintiff's Aff., pg. 9, ¶ 9, Dkt. No.
67; Reynolds Decl., pg. 8, Dkt. No. 72-1; Amended Compl., pg. 6, Dkt. No. 20). Other than his complaint that the hearing
officer lacked the authority to remove him from his program, Plaintiff does not elaborate regarding these “several procedural
due process violations.” Plaintiff does, however, assert that Defendant Reynolds admitted to him “they just want me to take
your program[.]” (Plaintiff's Aff., pg. 10, ¶ 9) Defendant Reynolds specifically denies making this statement. (Reynolds Decl.,
¶ 25, Dkt. No. 72-1).
Defendant Reynolds avers that “Plaintiff was permitted to ask for witnesses and present any evidence on his behalf, that he
did not deny any relevant witnesses or evidence, and if Plaintiff had made any objections, he would have notated them on
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the record.” (Reynolds Decl., ¶ 17, Dkt. No. 72-1). Plaintiff provides no details about his due process objections and does
not specifically controvert the statement made by Defendant Reynolds regarding the process that was afforded at the hearing.
Plaintiff acknowledged receipt of the written hearing disposition document by affixing his signature. (Reynolds Decl., pg. 10,
Dkt. No. 72-1).
Plaintiff filed an administrative appeal which was denied. (Id.). Plaintiff also asserts that he “filed an Article 78 petition in state
court, and the Superintendent, on his own, without explanation, expunged the report.” (Plaintiff's Aff., pg. 10, ¶ 9). Plaintiff
provides a copy of the decision and order dismissing the Article 78 petition dated December 11, 2020. (Dkt. No. 67-1, pg. 41).
The state court decision and order states: “The Attorney General has informed the Court that on May 29, 2015 (sic), the decision
in petitioner's Tier II Discipline Hearing of January 22, 2020[,] at the Great Meadow Correctional Facility was reversed and
expunged.” (Dkt. No. 67-1, pg. 41). The disciplinary hearing at issue was conducted by Defendant Reynolds on January 15,
and 18, 2020. The relevance of the Article 78 decision and order is not apparent given the date discrepancy. Plaintiff seems to
believe that Defendant Reynolds’ hearing decision was expunged. Defendants provide no comment.
Finally, while Plaintiff asserts that Defendant Reynolds was biased against him, Plaintiff offers no evidence in admissible form
that would allow a reasonable trier of fact to find in his favor.
Plaintiff has failed to show that he was deprived of his liberty interest without being afforded sufficient process. See Tellier
v. Fields, 280 F. 3d 69, 79-80 (2d Cir. 2000). The evidentiary record shows that Plaintiff was afforded the constitutionally
mandated due process requirements set out by the Supreme Court in Wolff v. McDonnell, 418 U.S. 539, 564-69, 94 S.Ct. 2963, 41
L.Ed.2d 935 (1974). 18 For the foregoing reasons and regardless of the outcome of the exhaustion hearing, the Court therefore
recommends that Plaintiff's procedural due process claim against Defendant Reynolds be dismissed with prejudice.
VI. Substantive Due Process Claims
A. Plaintiff's Substantive Due Process Claims are Duplicative of His Retaliation Claims Against Defendants
McLenithan, Guyette, Fraser, Hamel, Popp, Reynolds and Jones
*24 Plaintiff's claims against Defendants McLenithan, Guyette, Fraser, Hamel, Popp, Reynolds and Jones are based on his
assertion that they took adverse action against him because he filed grievances against them; that is, they retaliated against him.
“Claims of retaliation find their roots in the First Amendment.” Mallard v. Redner, No. 9:21-CV-1080 (LEK/TWD), 2023 WL
8828866, at *2 (citing Gill v. Pidlypchak, 389 F.3d 379, 380–81 (2d Cir. 2004)).
Where a particular Amendment “provides an explicit textual source of constitutional protection” against a particular sort of
government behavior, “that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for
analyzing these claims.” Graham, 490 U.S. at 386, 109 S.Ct. 1865; see also Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct.
807, 127 L.Ed.2d 114 (1994); Lewis v. City of Albany Police Dep't, No. 1:04-CV-0152 (DNH/RFT), 2005 WL 8169570, at
*7 (N.D.N.Y. Feb. 14, 2005) (“Since plaintiff has alleged a more specific claim for unreasonable search and seizure under
the Fourth Amendment, plaintiff's Fourteenth Amendment claim arising from the same search is duplicative and is therefore
barred by the rule set forth in Albright.”); Roman v. Velleca, No. 3:11-CV-1867, 2012 WL 4445475, at *10 (D. Conn. Sept.
25, 2012) (Under Albright, “substantive due process claims must be dismissed where they are merely duplicative of claims
explicitly protected under other constitutional sources”); Rother v. NYS Dept. of Corr. and Cmty. Supervision, 970 F.Supp.2d
78, 100 (N.D.N.Y. 2013) (“Plaintiff's substantive-due-process claim overlaps entirely with her procedural-due-process claim-
they both seek to remedy the same harm and challenge the same conduct ... Moreover, the harm and conduct challenged by the
substantive-due-process, First Amendment, and equal-protection claims significantly overlap. Because the claim for substantive
due process is subsumed by Plaintiff's other constitutional claims, it must be dismissed.”).
In this case, Plaintiff's Fourteenth Amendment substantive due process claims against Defendants McLenithan, Guyette, Fraser,
Hamel, Popp, Reynolds and Jones are entirely duplicative of his First Amendment retaliation claims, and therefore the Court
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recommends that the substantive due process claims be dismissed as against these Defendants. See Monko v. Cusack, No. 9:11-
CV-1218 (GTS/TWD), 2013 WL 5441724, at *3 (N.D.N.Y. Sept. 27, 2013).
B. Plaintiff's Substantive Due Process Claims Against Defendants Reynolds and Scarlotta Arising from the
Disciplinary Hearings are Duplicative of His Fourteenth Amendment Procedural Due Process Claims
Similarly, Plaintiff's substantive due process claims arising out of the disciplinary hearings conducted by Defendants Reynolds
and Scarlotta are duplicative of his procedural due process claim against them. While the procedural due process claim against
Defendant Scarlotta was dismissed on initial review (Dkt. No., pg. 35), the factual basis for both claims are duplicative, and
under Albright, “[w]here a particular Amendment provides an explicit textual source of constitutional protection against a
particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be
the guide for analyzing these claims.” Albright, 510 U.S. at 272-73, 114 S.Ct. 807 Therefore, the Court recommends dismissal,
with prejudice, of Plaintiff's substantive due process claims against Defendants Reynolds and Scarlotta.
VII. Conspiracy Claims
*25 Plaintiff asserts that Defendants Guyette, Popp, Hamel, Fraser and Reynolds conspired to violate his constitutional rights,
which is actionable under § 1983. See Pangburn v. Culbertson, 200 F. 3d 65, 72 (2d Cir. 1999). “In order to survive a motion to
dismiss, § 1983 ... conspiracy claims must ‘provide some factual basis supporting a meeting of the minds, such as that defendants
entered into an agreement, express or tacit, to achieve the unlawful end, augmented by some details of time and place and the
alleged effects of the conspiracy.’ ” Blue v. City of New York, No. 16-CV-9990, 2018 WL 2561023, at *9 (S.D.N.Y. June 4,
2018) (quoting K.D. ex rel. Duncan v. White Plains Sch. Dist., 921 F.Supp.2d 197, 208 (S.D.N.Y. 2013)). These Defendants
assert a that Plaintiff's conspiracy claims are barred by the intra-agency conspiracy doctrine.
“ ‘Under the intracorporate conspiracy doctrine, officers, agents and employees of a single corporate entity are legally incapable
of conspiring together[ ]’ ” while acting within the scope of their employment. Nassau County Employee “L” v. County of
Nassau, 345 F.Supp.2d 293, 304 (E.D.N.Y. 2004) (quotations and other citations omitted); see also Crudele v. City of N.Y.
Police Dep't, No. 97-CV-6687, 2004 WL 1161174, *5 (S.D.N.Y. May 24, 2004) (citations omitted). Although courts first
applied this doctrine to cases involving public corporations, they have subsequently held that the doctrine is applicable to
municipal entities and their officers, agents, and employees. See County of Nassau, 345 F.Supp.2d at 304 (citation omitted);
see also Cameron v. Church, 253 F.Supp.2d 611, 623 (S.D.N.Y. 2003) (quotation omitted). “However, ‘[a]n exception to the
intracorporate conspiracy doctrine applies to individuals within a single entity when they are pursuing personal interests wholly
separate and apart from the entity.’ ” County of Nassau, 345 F.Supp.2d at 304-05 (quotation omitted); see also Stoner v. N.Y. City
Ballet Co., No. 99-CV-0196, 2002 WL 523270, *9 (S.D.N.Y. Apr. 8, 2002) (quotation and other citation omitted); Griffin-Nolan
v. Providence Wash. Ins. Co., No. 5:04-CV-1453 (FJS/GJD), 2005 WL 1460424, at *10 (N.D.N.Y. June 20, 2005). “Although
the Second Circuit has recognized that the doctrine applies in the Section 1985 context (citing Hartline v. Gallo, 546 F.3d 95,
99, n.3 (2d Cir. 2008)), it has not passed directly on the doctrine's applicability in the Section 1983 context. However, district
courts within the Circuit have applied the doctrine to such claims.” Livingston v. Hoofagle, No. 9:19-CV-0353 (GLS/CFH),
2019 WL 7500501, at *16 (N.D.N.Y. Nov. 8, 2019) (collecting cases).
As there are no allegations, let alone any competent evidence to prove otherwise, the exception to the intracorporate conspiracy
doctrine is not applicable here. Accordingly, the Court recommends that summary judgment on this issue be granted regardless
of the outcome of the exhaustion hearing, and that Plaintiff's conspiracy claim against Defendants Guyette, Popp, Hamel, Fraser
and Reynolds be dismissed with prejudice.
VIII. Intentional Infliction of Emotional Distress
Defendants assert that Plaintiff's claim for intentional infliction of emotional distress is barred by New York Correction Law §
24 and the applicable statute of limitations 19 . (Dkt. 59-2, pg. 22).
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Corrections Law § 24 prohibits a civil action “against any officer or employee of the department, in his personal capacity, for
damages arising out of any act done or the failure to perform any act within the scope of employment and in the discharge of
the duties by such officer or employee.” Boyd v. Selmer, 842 F. Supp. 52, 57 (N.D.N.Y. Jan. 5, 1994). An employee's actions
are deemed to be within the scope of their employment when “the act was done while the servant was doing his master's work,
no matter how irregularly, or with what disregard of instructions.” Ierardi v. Sisco, 119 F.3d 183, 187 (2d Cir. 1997). When
the federal court applies supplemental jurisdiction, it applies state substantive law to the state claim. See Baker v. Coughlin,
77 F. 3d 12, 15 (2d Cir. 1996).
*26 Plaintiff does not respond to this argument. 20 As there are no allegations that Defendants were acting outside of the scope
of their employment and in the discharge of their duties, the statutory bar imposed by Corrections Law § 24 is applicable, and
the Court therefore recommends that summary judgment be granted regardless of the outcome of the exhaustion hearing and
that Plaintiff's claim for intentional infliction of emotional distress be dismissed with prejudice.
IX. Qualified Immunity
As Defendants correctly note, the issue of qualified immunity cannot be resolved if there is an issue of fact regarding whether
there is a lack of retaliatory causation, that is, whether there was a constitutional violation. See Moreno v. Ricks, No. 9:02-
CV-1435 (PAM/GJD), 2006 WL 2333961, at *2 (N.D.N.Y. Aug. 9, 2006).
Insofar as the Court is recommending that summary judgment be granted as to Defendants Guyette, McLenithan, Popp, Fraser,
and Hamel, the issue as to whether they are shielded from liability by the qualified immunity doctrine is moot. Conversely, since
the Court is recommending that summary judgment be denied as to Defendant Jones, he cannot rely on qualified immunity to
evade potential liability.
X. Claim for Compensatory Damages Under PLRA 21
The Prison Litigation Reform Act (“PLRA”) provides in relevant part, that “[n]o Federal civil action may be brought by a
prisoner ... for mental or emotional injury suffered while in custody without a prior showing of physical injury ...” 42 USC
§ 1997(e)(e). The PLRA “is generally interpreted to preclude a prisoner complaining of mental and emotional injury during
imprisonment, without a showing of physical injury, from receiving an award of compensatory damages.” Walker v. Schult,
45 F.4th 598, 612 (2d Cir. 2022). The physical injury must be more than de minimis. See Liner v. Goord, 196 F.3d 132, 135
(2d Cir. 1999).
Here, Plaintiff alleges that he suffered physical injury on January 24, 2020, when he was attacked from behind by another
incarcerated individual. Plaintiff avers that he received a 1 ½” laceration that required eight stitches and left a permanent
scar. (Plaintiff's Aff., pgs. 12-13, ¶11, Dkt. No. 67). Plaintiff asserts that this attack was provoked by Defendant Popp because
of grievances he filed. (Plaintiff's Aff., pgs. 12-13, ¶¶ 11-12, Dkt. No. 67). Defendants do not dispute Plaintiff's statements
concerning his injury. Plaintiff also asserts many emotional injuries, which he alleges were caused by Defendants’ actions
against him. (Plaintiff's Aff., pg. 14, ¶12).
*27 However, Plaintiff also states that prior to the January 24, 2020 fight, he had a prior history of mental health issues
(Plaintiff Aff., pgs. 12-13, ¶11, Dkt. No. 67), which resulted in a level one mental health status (Dkt. No. 67-1, pg. 26, ¶ 3).
Plaintiff also states that Lt. Wilson, the officer who reviewed Defendant Guyette's December 31, 2019 MBR (and is not a party
to this action), retaliated against him by failing to classify the MBR as a Tier I violation and failed to consider his level one
mental health status, which MBR put Plaintiff in a “homicidal/suicidal state of mind that cause me to make a noose and attempt
to hang myself as is explained in one of my grievances and formal complaints.” (Id.).
As it relates to Plaintiff's retaliation, substantive due process, conspiracy, and intentional infliction of emotional distress claims
against Defendants McLenithan, Guyette, Hamel, Fraser, Reynolds, Scarlotta and Jones, Plaintiff has failed to meet his burden
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to show a physical injury upon which compensatory damages claim under the PLRA might be predicated. Therefore, the Court
recommends that summary judgment dismissing Plaintiff's claim for compensatory damages against McLenithan, Guyette,
Hamel, Fraser, Reynolds, Scarlotta and Jones, be granted.
Regarding the excessive force and failure to protect claim against Defendant Popp, Plaintiff alleges that he suffered a
facial laceration and scarring because of the attack he claims was orchestrated by Popp, and suffered “mental, emotional
damages.” (Plaintiff Aff., pgs. 12-13, ¶11, Dkt. No. 67) While this is a physical injury which supports compensatory damages
under the PLRA based on Plaintiff's allegations, see Corley v. City of New York, No. 1:14-CV-3202, 2015 WL 5729985, at *16,
2015 U.S. Dist. LEXIS 135362, at *43 (S.D.N.Y. Sept. 30, 2015) (physical injury found not to be “de minimis” where medical
attention was required), if the Court accepts the recommendation to grant the motion to dismiss the excessive force and failure
to protect claim against Defendant Popp, then of course, the claim for compensatory damages should likewise be dismissed.
WHEREFORE, based on the findings above, it is
RECOMMENDED, that an exhaustion hearing be scheduled to determine whether Plaintiff exhausted his administrative
remedies pursuant to 42 U.S.C. § 1997e(a) prior to having commenced this action; and it is further
RECOMMENDED, that notwithstanding the findings of an exhaustion hearing, Defendants’ motion for summary judgment
(Dkt. No. 59) as to Defendants Guyette, McLenithan, Popp, Fraser, and Hamel should nevertheless be GRANTED IN ITS
ENTIRETY and the amended complaint should be DISMISSED WITH PREJUDICE against them, and it is further
RECOMMENDED, that notwithstanding the findings of an exhaustion hearing, Defendants’ motion for summary judgment
(Dkt. No. 59) as to Defendant Jones should be DENIED, and it is further
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).
Pursuant to 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).
All Citations
Slip Copy, 2025 WL 1033853
Footnotes
1 The Notice of Due Date to Respond to Motion for Summary Judgment which includes the consequences of the pro se
litigant's failure to comply with the requirements of Fed. R. Civ. P. 56 was served upon the Plaintiff by regular mail.
(Dkt. Nos. 60).
2 Plaintiff's Affidavit is also used as a vehicle to present documents. However, while the documents are cited at the end
of various paragraphs, the import of the documents is not discussed.
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3 All page citations referenced in the Dorando Declaration are to the actual deposition page numbers and not to the pages
numbers assigned by the CM/ECF system.
4 Defendants’ citation generally to Exhibit “A” in support of this fact is not specific and not helpful. Exhibit “A” to the
Cutler Declaration is thirty pages of computer printouts. The documentary evidence to support this fact is found at Dkt.
No. 59-3, pg. 22.
5 In the SOMF, defendants cite generally to Reynolds at “Exh. A” which is seven (7) pages of internal DOCCS documents,
some of which is difficult to understand without guidance from defendants, which was lacking here.
6 In the complaint (Dkt. No. 1) and amended complaint (Dkt. No. 20), Plaintiff alleges that the retaliatory acts were taken
because of grievances, but he does not ever clearly state that he filed any grievances.
7 While the letters have a similar appearance, below the signature line appears the cell block information for the plaintiff
presumably at the time he signed and or sent the letters.
8 Neither the complaint (Dkt. No. 1) nor the amended complaint (Dkt. No. 20) provided notice of any issue concerning
the grievance process. If however, a litigation hold notice had been issued to the facility by DOCCS, documents prior to
January 2020 would have been preserved, including those concerning the grievances filed by plaintiff titled “Grievance
Process” and “Missing Grievance.” (Seguin Del., pg. 8, Dkt. No. 59).
9 The hearing officer was Lt. Murphy who is not a defendant.
10 Defendants reply memorandum of law suggests an evidentiary hearing on the issue of exhaustion if the court declines
to grant summary judgment. (Dkt. No. 69, pg. 5).
11 The hearing determination was affirmed on appeal on February 6, 2020. Dkt. 72-1, (Exhibit “A”, pg. 7).
12 Plaintiff testified at his deposition that the incident with C.O. Jones occurred in April of 2020. (Dorando Decl., Exhibit
“A,” pgs. 43-44). However, the record evidence establishes that the MBR was issued on June 7, 2020.
13 When Defendants filed their summary judgment motion, they neglected to file the Reynolds Declaration (Dkt. No. 72-1)
which was filed with the court's permission on January 3, 2025. Plaintiff filed a timely written response to the same.
(Dkt. No. 74)
14 In the initial review under 28 USC § 1915, Judge Kahn held that the cited regulation does not provide the hearing officer
with the authority to remove the defendant from a program job as a remedy following a disciplinary hearing. (Dkt. No.,
pgs. 33-34).
15 Defendant Hamel attests that “I temporarily suspended Plaintiff from his position at the Law Library, which I was
empowered to do, because Plaintiff was found guilty of conduct demonstrating his misuse of his position.” (Hamel
Decl., ¶15, Dkt. No. 59-7).
16 Directive 4803, Section X provides that the “DSP, or equivalent, shall be responsible for fall facility programs. The
facility DSP may designate a staff person at SG-22 or equivalent, such as a Supervising Offender Rehabilitation
Coordinator or Education Supervisor or above, as the Program Committee Chairperson ...” Directive 4803, Section XI(B)
provides that the “Program Committee Chairperson shall be responsible for all program assignments and removals (with
the exception of Incarcerated Grievance Resolution Committee representatives who are covered by Directive #4040,
“Incarcerated Grievance Program”). Directive 4803 lacks clarity as to whether Lisa Stickney, the Deputy Superintendent
of Program Services at the time, or the Chair of the IGRC had the authority to remove Plaintiff his law library program.
However, Plaintiff does not seem to contest Lisa Stickney's authority.
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17 Plaintiff has no liberty interest beyond this “procedural” liberty interest, as an incarcerated individual has no protected
liberty or property interest in a prison job. See Gill v. Mooney, 824 F.2d 192, 194 (2d Cir. 1987).
18 Collectively, the cited cases require that the incarcerated individual be provided with written notice of the charges,
be permitted an opportunity to appear at a disciplinary hearing and a reasonable opportunity to present witnesses
and evidence, the hearing officer (who must be impartial) must prepare a written statement explaining their decision
and the reasons for the action being taken, and in some circumstances not present here (i.e., defendant needs special
accommodations), the right to assistance in preparing a defense.
19 Defendants’ answers (Dkt. Nos. 29, 53) to Plaintiff's amended complaint (Dkt. No. 20) do not assert statute of limitations
as a defense, and therefore this defense has been waived.
20 “In this District, when a non-movant fails to oppose a legal argument asserted by a movant, the movant's burden with
regard to that argument is lightened, such that, in order to succeed on that argument, the movant need only show that
the argument possess facial merit, which has appropriately been characterized as a ‘modest’ burden.” Ryder v. Czajka,
No. 1:23-CV-1002 (GTS/MJK), 2025 WL 391179 (N.D.N.Y. Feb. 4, 2025) (citing N.D.N.Y. L.R. 7.1(a)(3)) (“Where a
properly filed motion is unopposed and the Court determines that the moving party has met to demonstrate entitlement
to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be
deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.”); see also
Rusyniak v. Gensini, No. 07-CV-0279 (GTS/GHL), 2009 WL 3672105, at *1, n.1 (N.D.N.Y. Oct. 30, 2009) (collecting
cases); Este-Green v. Astrue, No. 09-CV-0722 (GTS/GHL), 2009 WL 2473509, at *2, nn.2, 3 (N.D.N.Y. Aug. 7, 2009)
(collecting cases).
21 While defendants do not make it clear, the court assumes that this argument is made on the assumption that Plaintiff's
claims have otherwise withstood legal scrutiny.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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McIntosh v. United States, Not Reported in Fed. Supp. (2016)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
KeyCite Yellow Flag
Declined to Follow by Steves and Sons, Inc. v. JELD-WEN, Inc., E.D.Va., May 1, 2018
2016 WL 1274585
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Charles T. MCINTOSH, Plaintiff,
v.
UNITED STATES of America, Mr. P. Conklin, Ms. M. Recktenwald, Mr. M. Whinnery, Mr. Susney,
Mr. J. Diehl, Mr. D Hickman, Mr. A. Dachisen, Joseph Miraglia, and Brad Magie, Defendants.
Case No. 14-CV-7889 (KMK)
|
Signed 03/31/2016
Attorneys and Law Firms
Charles T. McIntosh, Pekin, IL, Pro se Plaintiff.
Natasha Waglow Teleanu, Esq., United States Attorney's Office, SDNY, New York, NY, Counsel for Defendants United States
Of America, Mr. P. Conklin, Ms. M. Recktenwald, Mr. M. Whinnery, Mr. Susney, Mr. J. Diehl, Mr. D. Hickman, Mr. A. Dachisen,
Joseph Miraglia, and Brad Magie.
OPINION & ORDER
KENNETH M. KARAS, District Judge:
*1 Charles T. McIntosh (“Plaintiff”), proceeding pro se, brings this action against the United States of America, Patrick
Conklin (“Conklin”), Monica Recktenwald (“Recktenwald”), Matthew Whinnery (“Whinnery”), David Susney (“Susney”),
Jason Diehl (“Diehl”), Derek Hickman (“Hickman”), Andrew Dachisen (“Dachisen”), Joseph Miraglia (“Miraglia”), and Brad
Magie (“Magie”), asserting a host of constitutional violations. Defendants move to dismiss on a variety of grounds, pursuant
to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Additionally, Plaintiff seeks an injunction preventing
Defendants from destroying certain evidence and requesting sanctions in connection with Defendants' failure to preserve those
materials. For the reasons that follow, Defendants' Motion is granted in part, and Plaintiff's Motion is denied in part.
I. Background
A. Factual Background
The following facts are taken from Plaintiff's Amended Complaint and, for purposes of resolving Defendants' Motion only,
are presumed true.
1. Plaintiff's Assignment to the Special Housing Unit
At the time of the events giving rise to the instant Amended Complaint, Plaintiff was an inmate in Unit D-B at Otisville
Correctional Facility (“Otisville”), and Conklin was a corrections officer at least initially in Unit D-A. (See Am. Compl. ¶¶ 1–
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2, 6 (Dkt. No. 22).) At some point in October or November 2013, after Conklin and another corrections officer completed the
10:00 pm lockdown count, Conklin told the inmates in Unit D-B that, “if he continue[d] to smell [cigarette] smoke in the dorm,
he was going to turn off the TV[ ]s every night at 10[ ]pm.” (See id. ¶¶ 1–2.) 1 Plaintiff then told Conklin that (1) he was not
authorized to carry out that threat, (2) Conklin could not punish a whole unit for the behavior of individuals who chose to smoke,
and (3) Plaintiff did not smoke. (See id. ¶ 3.) According to Plaintiff, “[i]t is the officer's job to catch/find th[ose] person[ ]s” who
committed the infraction “and [to] punish them alone,” but it was “wrong” “to try and force [the inmates] to do the officer's job,”
and, in any event, “[one] would need the administration's approval to authorize the turning off of the TV[ ]s.” (Id. ¶ 4.) After
Plaintiff's statement, Conklin became agitated, and, “[f]rom that day [on],” Conklin's attitude toward Plaintiff “changed,” and
Conklin “verbally and ph[ys]ically [harassed]” Plaintiff every time that Conklin saw him. (See id. ¶¶ 5–6.) For instance, Conklin
made “[s]arcastic comment[ ]s” to Plaintiff, searched Plaintiff as well as his carrying bag, and “stat[ed] that there [would] be
a[ ]lot of changes when [Conklin] start[s] to work back in D-B next quarter.” (See id. ¶ 6.)
On December 6, 2013, Plaintiff walked out of Unit D-B “at the call of Insulin-line” and, after dinner, walked back to his unit,
which required him to walk through Unit D-A. (Id. ¶ 7.) As he was doing so, for under two minutes, he fielded a “legal question”
from an inmate in Unit D-A “about the drug law[ ]s being litigated on by [C]ongress.” (See id. ¶¶ 8–9.) That inmate followed
Plaintiff into Unit D-B, (see id. ¶ 9), but was not issued an incident report, “[s]howing a clear case of targeting, personal vendetta,
and retaliation against this Plaintiff etc.,” (see id. ¶¶ 27–28). Plaintiff entered his living area, and, about 30 minutes later, Conklin
entered Unit DB, walked past everyone directly to Plaintiff, and asked for his ID. (Id. ¶¶ 10–12.) Plaintiff asked Conklin why,
and Conklin said that “he didn[']t have to tell [Plaintiff] why.” (Id. ¶ 12 (internal quotation marks omitted).) When Plaintiff
replied that Conklin indeed had to tell Plaintiff because Conklin was “not [Plaintiff's] unit officer” and because Plaintiff “should
know why [his] ID [was] being requested,” Conklin replied that Plaintiff would “find out soon.” (See id. (internal quotation
marks omitted).) Conklin then approached the same Unit D-B inmates whom he had earlier walked past and asked for their
IDs in an attempt to avoid creating the impression that he was “singling Plaintiff out” or otherwise “personally attacking ...
Plaintiff.” (See id. ¶ 13.) These inmates were not issued incident reports. (See id.) Plaintiff asked the inmates why Conklin was
taking the inmates' IDs, and, after the inmates said that “[Conklin] was writing ... up incident report[s] for being up-front in
his unit,” Plaintiff informed the inmates “that he has [Plaintiff] fucked up because [Plaintiff] [doesn't] associate with anyone in
[Unit] D-A like that.” (See id. ¶ 14.) Conklin heard this conversation as he was exiting Unit D-B. (Id. ¶ 15.)
*2 Plaintiff then went to the office of the unit officer, whom he told that “Conklin just came ... and took [Plaintiff's] ID for
some unknown reason.” (Id. ¶ 16.) The unit officer said that he would call Conklin and find out why, after which time Plaintiff's
case manager, Ms. Ferdula (“Ferdula”), came into Unit D-B, had a conversation with the unit officer, and called Plaintiff into
her office to ask what happened between Plaintiff and Conklin. (Id. ¶¶ 16–17.) After Plaintiff told her, she asked him to wait
outside while she spoke to the unit officer and the other inmates whose IDs were taken. (Id. ¶ 17.) Ferdula then told Plaintiff
that he was being called into the lieutenant's office. (Id.)
As Plaintiff entered the lieutenant's office, he noticed Lt. Munios (“Munios”), who supposedly had a problem with Plaintiff
because he “exerc[ised] his due process right to grieve” by filing grievances on staff and others. (Id. ¶ 18.) Plaintiff knew that
he would be assigned to the Special Housing Unit (“SHU”) because the lieutenant finally had the opportunity. (Id.) Lt. Heli
(“Heli”) told Plaintiff what Conklin wrote in his incident report and then asked Plaintiff what happened. (Id. ¶ 19.) Plaintiff told
the lieutenants the statement that he made was to directed to the inmates to whom he was talking, that Conklin was already out
the door, and that “in no way was any threatening statement ... made directly to ... Conklin.” (Id.) Plaintiff told the lieutenants
that they could check his record and that Plaintiff was not one to disrespect staff or a fellow inmate in all his years in prison.
(Id.) Plaintiff explained that he had just finished a heated phone call and was upset but never made a threatening statement
toward Conklin. (Id.) Munios said that, if it were up to him, he would throw Plaintiff in the SHU right then and there. (Id. ¶ 20.)
Heli then told Plaintiff that he would be placed in the SHU for the weekend to “'cool off' just in case [Plaintiff] made another
phone call and g[o]t more upset and [took] it out on his officer.” (Id. ¶ 21.) Plaintiff then said that sort of behavior was “not
his styl[e]” and that it was not “in his jacket [sic] to ever ac[t] like that.” (Id. ¶ 22.) Plaintiff then said that sending him to the
SHU was a “retaliation act [for] Plaintiff filing on staff” and that Munios “was tak[ing] this opportunity to place Plaintiff in
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the SHU.” (Id. (internal quotation marks omitted).) Munios stated that, “even though [P]laintiff made it direct or indirect to the
officer, he still heard it and took it the way he wanted.” 2 (Id. ¶ 23.)
At 7:20 pm that evening, Plaintiff was placed in the SHU, where he received a “false and fraudulent” incident report made by
Conklin, which indicated that, upon asking Plaintiff for his ID card, Plaintiff responded in a very loud manner that Conklin (1)
“need[ed] a reason to take it” and (2) was “fucking with the wrong guy.” (Id. ¶ 24 (internal quotation marks omitted).) With
regard to the first statement, Plaintiff concedes that he uttered these words but disputes that he said them in a loud manner. (See
id. ¶ 25.) With respect to the second sentence, however, Plaintiff claims that Conklin “altered” his statement because “Plaintiff
is a[n] African American” and, apparently consequently, “has never used the word [']guy['] in his vocabulary,” and the relevant
statement and conversation “was taking place among inmates, not inmates and officers.” (Id. ¶ 26.)
2. Plaintiff's Run-in with Officer Magie
*3 On March 11, 2014, the SHU lieutenant and officer refused to take Plaintiff to the shower, despite it being no more than
ten feet from his cell. (Id. ¶ 58.) Magie, despite knowing that Plaintiff is handicapped, walks with a cane, and has a back injury
and swollen feet, nonetheless refused to allow Plaintiff to use the closest shower and instead “intended to walk Plaintiff on
the other[ ]side of the building without his cane.” (Id.) Magie also refused to allow Plaintiff to use a “belly-chain” with the
handcuffs, “which [Magie] intended to handcuff Plaintiff [with] behind his back.” (Id.)
Plaintiff refused to be “placed on the other side of the building” and to be cuffed from the back. (Id. ¶ 59.) In response, Magie
went ballistic, yelling, “This is [my] fucking house! You have to do what I say to do! Not the other way around! You don't tell
me what you want! I tell you what I want! I run things back here! etc.” (Id.) Plaintiff was then forced to wash up in the cell-
sink of a “very severe freezing cell,” in which Magie made him remain without clothing despite Plaintiff repeatedly saying that
he was naked and freezing. (Id. ¶ 60.) Plaintiff called for the SHU lieutenant, but he did not answer, so Plaintiff banged on
and kicked the SHU cell door. (See id. ¶ 61.) The lieutenant then came to the cell-door, where Plaintiff explained the situation
to him. (Id.) The SHU lieutenant requested that the SHU officer provide Plaintiff with clothing, to which Magie responded
that “he [would] get [the clothes] when he's ready[ ] because ... Plaintiff [doesn't] run shit back here.” (Id. ¶ 62.) Magie then
continued to ignore Plaintiff's living conditions, instead walking by Plaintiff's cell without giving Plaintiff any clothing. (Id. ¶
63.) Fifteen minutes later, Plaintiff kicked and banged on the cell door for the lieutenant's attention to show him that Magie
still had not provided Plaintiff with clothing. (Id. ¶ 64.) As a result, the lieutenant then turned around and took clothing off of
a cart across from Plaintiff. (See id.) 3
3. Plaintiff's Request to Make a Phone Call and Subsequent Transfer
At some point in 2014, Plaintiff received a letter from an attorney regarding civil action settlement conditions. (Id. ¶ 65.)
Plaintiff forwarded a request to Mr. Repecki (“Repecki”), the unit manager, who told Plaintiff that he would instruct Mr. Demeo
(“Demeo”), Plaintiff's counselor, to provide Plaintiff with a legal phone call. (Id.)
On the day Plaintiff was packing his property to prepare for his upcoming transfer from Otisville to MDC Brooklyn, Plaintiff
told Demeo that Repecki indicated that he would tell Demeo that Plaintiff was to be allowed to place a call to an attorney. (Id.
¶ 66.) Demeo responded that he just met with Repecki, who had said nothing about providing Plaintiff with a legal call. (Id.)
Demeo said that, in any event, Plaintiff was “outta here” and “[didn't] need any m[ ]ore legal calls to the law firm of Reed
Smith LLP.” (Id. ¶ 66.)
A week later, Plaintiff was transferred to MDC Brooklyn. (Id.) The legal proceedings would be delayed for a month until
Plaintiff reached his destination at F.C.I. Terre Haute. (Id.)
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4. Plaintiff Pursues his Administrative Remedies with Respect to Conklin
Just over three weeks after Plaintiff was initially put in the SHU, on December 28, 2013, he filed his “BP-8 informal resolution
for the submi[ss]ion of a false incident report, 'official/legal' filing against ... Plaintiff to the D-unit counselor, Mr. Demeo,”
which was then submitted to Whinnery on December 30, 2013. 4 (Id. ¶ 29; see also Pro Se Pl.'s Resp. to the Government's
Mot. To Dismiss (“Pl.'s Opp'n”) ¶¶ 2–3 (Dkt. No. 28); Pl.'s Opp'n Ex. B. (BP-8 Form); Pl.'s Opp'n Ex. C (BP-8 Response).) 5
Plaintiff was then called into an office where Diehl was waiting for Plaintiff. (Am. Compl. ¶ 30.) Plaintiff then explained the
incident, after which time Diehl told Plaintiff that he had to wait for the “DHO” hearing before Plaintiff could file a grievance
against Conklin. (Id.) 6 Plaintiff said that the matter was not one for DHO but rather was an “administrative matte[ ]r dealing
with criminal conduct and acts by a[ ] United States Government employee in official duties.” (Id.) Plaintiff was then dismissed.
(Id. ¶ 31.)
*4 In early January 2014, Plaintiff received Diehl's response to Plaintiff's BP-8, which said, among other things, that allegations
such as Plaintiff's are “taken seriously” and received “an appropriate amount of review” but that, “[d]ue to the privacy interest
of the staff member which [Plaintiff] name[d], [the Bureau of Prisons] [was] unable to disclose to [Plaintiff] any findings or the
result o[f] [the Bureau's] review of th[e] matter.” (Id.; see also Pl.'s Opp'n ¶ 3; Pl.'s Opp'n Ex. C (BP-8 Response).) Afterwards,
Conklin returned to work on his regular schedule and continued to target Plaintiff with “pat-searches” and “verbal com[m]ents
degrading Plaintiff's effort[s] of filing his administrative remedy grievances.” (Am. Compl. ¶ 32.) That same day, Plaintiff
submitted his BP-9 administrative remedy to Dachisen, who turned Plaintiff's BP-9 over to Special Investigative Services
(“SIS”) instead of the administrative remedy coordinator for the facility. (Id. ¶ 33; see also Pl.'s Opp'n ¶ 4; Pl.'s Opp'n Ex. D
(BP-9 Form and Response).) 7
A few weeks later, Hickman summoned Plaintiff to the lieutenant's office to address his BP-9 grievance form. 8 (Am. Compl.
¶ 34.) Plaintiff explained that, if Conklin were to continue to work in the unit, Plaintiff wished to exhaust his administrative
remedies because it was clear to him that the prison administration had no intention of ever remedying Conklin's submission of
fraudulent and misleading incident reports. (See id.) Hickman said that he would “forward the process[ ] and give his response”
so that Plaintiff could continue to exhaust his administrative remedies. (Id. ¶ 35.)
On February 12, 2014, Recktenwald responded to Plaintiff's BP-9, stating that, “[o]n December 10, 2013, the UDC found
[Plaintiff] committed [Code] 312, Insolence Towards a Staff Member and sanctioned, accordingly” and that “[a]dditionally,
[Plaintiff] also admitted that [he] made the statement in reference to the staff member.” (Id. ¶ 41; see also Pl.'s Opp'n ¶ 5; Pl.'s
Opp'n Ex. E (BP-9 Response).) 9 Since then, the Otisville administration has “refus[ed] to address and avoid the submission
of [a] fraudulent incident report of being in an [u]nauthorized [a]rea which gave rise to Plai[ ]ntiff's statement made to fellow
inmates and not to staff directly or indirectly.” (See Am. Compl. ¶ 42.) Rather, “Conklin read [the BP-9] [as] allowing [him]
to believe he had the green light to do as he pleased without the [fear] of any interference from his co-workers, commanding
officer[ ]s[,] and administration/warden.” (Id.)
Sometime around February 16 or 17, 2014, Conklin, who was assigned to Unit D-B for the quarter, called Plaintiff to come
retrieve his mail. (See id. ¶ 36.) About 15 to 30 minutes after Plaintiff did so and returned to his living area, Conklin called
Plaintiff to an office where Conklin “with a sm[i]rk on his face” handed Plaintiff his BP-9. (Id.) About 30 minutes later, Conklin
walked out of his office, directly to Plaintiff's living area, and started searching. (Id. ¶ 37.) Conklin made two or three more
visits to Plaintiff's living area that same night. (Id.) At the 5:00 pm call for insulin, Conklin waited outside the Unit D-B doors
where he stopped Plaintiff and questioned him about his double mattress that Plaintiff had had since before Conklin began
working there. (Id. ¶ 38.) “Upon return back to [the] D-B unit[,] ... Conklin stood outside the entrance to D-B from the D-A unit
[and] ... threatened ... Plaintiff[,] stating[,] 'if you don't put that second mattress in[ ]front of my office[,] you will be going to
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the SHU.'” (Id.) Plaintiff then immediately took the mattress off his bed and put it in front of Conklin's office. (Id. ¶ 39.) That
night, Conklin “repeatedly made his rounds stric[t]ly at Plaintiff's living area.” (Id. ¶ 40.)
*5 On February 20, 2014, Plaintiff filed a “Notice of Motion for Restraining O[r]der against [Bureau of Prisons (“BOP”) ]
staff employee at [Otisville], on ... Conklin for har[ ]assment, which was being done with malicious intent[ ] [t]o the United
States District Court sentencing Judge[ ] William C. Griesbach, to the United States Attor[ne]y General, Eric Holder, Jr., and
to the B[OP] Regional O[ ]ffice.” (Id. ¶ 43; see also Pl.'s Opp'n ¶ 16; Pl.' Opp'n Ex. P. (E.D. Wis. Mot.); Pl.'s Opp'n Ex. V (E.D.
Wis. Mot.).) 10 On February 24, 2014, Plaintiff also filed a complaint of reprisal and abridgment of rights to redress. (Am.
Compl. ¶ 44.) The next day, the Otisville administration received its copy of the restraining order motion, and, at 9 am, Plaintiff
was escorted to an office where he was stripped, had pictures of his body taken, and was handcuffed before being brought to the
SHU. (Id. ¶ 45.) Plaintiff was processed into the SHU after Hickman and Susney waited for Plaintiff to provide “an affidavit
stating the reason why Plaintiff filed his motion.” (Id. ¶ 46.) Susney told Plaintiff that he would receive a copy of his signed
affidavit; however, he did not, and, upon Plaintiff's transfer from Otisville, Susney told him that he “[could] not rec[ei]ve a copy
of his own affidavit” “because it involve[d] staff.” (Id.)
In March 2014, Plaintiff filed a “complaint of reprisal/abridgment of right to redress Plaint[ ]iff's filing complaint of
retaliation.” (Id. ¶ 47.) “Stating that at around 9:15 or 9:30am, Plaintiff [was] es[ ]corted off the F.C.I. Otisville compound
and [was] place[d] in the SHU for filing complaint.” 11 (Id. ¶ 48.) Plaintiff was then placed in a freezing cell without heat at
a “[temperature] way below zero” and windows that were open, broken, and could not be closed. (Id. ¶ 49.) “Plaintiff also
stated that he was without shoes on a cold ic[ ]y floor with only one pair of socks on his feet for two whole days until the
warden walked by doing their [sic] SHU rounds.” (Id. ¶ 50.) Finally, on April 14, 2014, Plaintiff submitted a Central Office
Administrative Remedy Appeal to the BOP, to which he received a response on October 28, 2014. (See Pl.'s Opp'n ¶ 1; Pl.'s
Opp'n Ex. A (Office of General Counsel Appeal).)
5. Plaintiff's Other Complaints
In his Amended Complaint and Opposition to Defendant's Motion, Plaintiff also alleged he raised other issues with various
prison and other governmental officials.
First, and apparently not directly connected with his claims in this case, Plaintiff complained that he believed the prison was
tampering with his mail. (See Pl.'s Opp'n ¶ 6; Pl.'s Opp'n Ex. F (Letter from M. Whinnery to Plaintiff (Sept. 30, 2013)).)
Additionally, by letter dated February 24, 2014, Plaintiff requested that Attorney General Eric Holder and a component of the
Department of Justice issue a restraining order against Conklin and suspend him without pay for 60 days because, Plaintiff
asserted, Conklin harassed him and retaliated against him. (See Pl.'s Opp'n Ex. O (Letter from Pl. to “Special Investigation
Attorney General” (Feb. 24, 2014)); see also Pl.'s Opp'n ¶ 15.)
Several days later, on February 26, 2014, at around 12:30 pm, the warden, “both A.W's Captain,” the health service administrator,
warden assistant, and the unit manager for D-Unit were made aware of Plaintiff's living conductions in cell #209 of the SHU.
(Am. Compl. ¶ 52.) Additionally, on March 4, 2014, Plaintiff wrote a “notice” to Recktenwald, which was submitted to her the
next day. (Id. ¶ 53; see also Pl.'s Opp'n ¶ 7; Pl.'s Opp'n Ex. G (Letter from Pl. to Warden (Mar. 4, 2014)).) That notice addressed
four issues: (1) that Plaintiff signed an affidavit on February 24, 2014 with Susney but had not yet received a copy of it despite
repeatedly asking for one; (2) that Plaintiff wears hand braces for both hands but that neither the SHU nor the medical staff
had replaced a set as promised on February 25, 2014; (3) that there was no heat in Plaintiff's cell, which, with all the windows
being either open or broken, made the experience akin to being outside at night in the middle of a blizzard when the temperature
is fifteen degrees below zero, causing Plaintiff's feet, toes, and hands to be frozen ever since he was placed in the SHU; (4)
that Plaintiff is being “subjected to cruel and unusual punishment by [her] administration” and that Plaintiff was “placing [her]
on notice with this document of this deliberate indifference, cruel and unusual punishment[,] ... reprisal[,] and abridgment of
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[Plaintiff's] right to redress and grieve an injustice acts [sic] upon [his] person.” (See Am. Compl. ¶ 53; Pl.'s Opp'n Ex. G (Letter
from Pl. to Warden (Mar. 4, 2014)).) 12
*6 Next, Plaintiff submitted a letter dated February 27, 2014 to “special investigation attorney general,” in the Civil Rights
Division's Special Litigation Section at the Department of Justice complaining about, among other things, the fact that Plaintiff
was photographed by the compound officer, that his cell was freezing, that Plaintiff was not permitted a pair of medical shoes,
that he does not have hand braces, and that he was being retaliated against. (See generally Pl.'s Opp'n Ex. Q (Feb. 27, 2014
complaint packet); see also Pl.'s Opp'n ¶ 17.) Although it is unclear whether it relates to Plaintiff's February 27 letter, Plaintiff
received a letter dated April 3, 2014 from Jonathan Smith, chief of the Special Litigation Section of the Department of Justice,
thanking him for his letter and indicating that the section “d[id] not have the resources to followup [sic] on every letter,” but he
“[would] review [Plaintiff's] letter to decide whether it [was] necessary to contact [Plaintiff] for additional information.” (Pl.'s
Opp'n Ex. S (Letter from Jonathan Smith to Pl. (Apr. 3, 2014)), at unnumbered 1; see also Pl.'s Opp'n ¶ 19.) The letter stressed
that “[t]he Special Litigation Section only handles cases that arise from widespread problems that affect groups of people” and
that it could not “assist with individual problems” or “help [inmates] recover damages or any personal relief.” (Pl.'s Opp'n Ex.
S (Letter from Jonathan Smith to Pl. (Apr. 3, 2014)), at unnumbered 1.) In a separate letter dated April 3, 2014, also from
Jonathan Smith, the Special Litigation Section informed Plaintiff that it “d[id] not have jurisdiction in [Plaintiff's] matter” but
“believe[d] that authority for handling this matter may rest with the Federal Bureau of Prisons” to whom it would refer the
matter. (Pl.'s Opp'n Ex. T (Letter from Jonathan M. Smith to Pl. (Apr. 3, 2014)); see also Pl.'s Opp'n ¶ 20.) That letter was sent
to the BOP by letter dated April 3, 2014, which, in turn, informed Plaintiff on May 20, 2014 that a review of it revealed that
it contained issues that should first be brought to the attention of prison staff. (See Pl.'s Opp'n Ex. Q (Feb. 27, 2014 complaint
packet) at unnumbered 1–3.)
On March 5, 2014, Plaintiff also “placed the warden on notice” that he was being prevented from using the phone as needed, that
he was not housed in the SHU for breaking any BOP policies, and that it was “cruel and unusual punishment” and “deliberate
indifference” to be subjected to cold confinements yet not charged with a crime or violation. (See Am. Compl. ¶ 54; see also
Pl.'s Opp'n ¶ 13; Pl.'s Opp'n Ex. M (Letter from Pl. to Warden (Mar. 5, 2014)).) That same day, Plaintiff wrote a letter addressed
to Mary Patrice Breun at the Department of Justice, complaining of a number of issues, including that he had a freezing cell,
was not permitted to wear his medical shoes, needs to wear hand braces, was forced to give up his mattress, and was retaliated
against. (See generally Pl.'s Opp'n Ex. N (Letter from Pl. to Mary Patrice Breun (Mar. 5, 2014)); see also Pl.'s Opp'n ¶ 14.)
At the breakfast serving the following day, Plaintiff contacted the SHU lieutenant and informed him that Plaintiff was in the SHU
“right now for a restraining order against ... Conklin and 'for [his] protection' as SIS claim [sic],” but that “the same officer [was]
at [the] door feeding [Plaintiff]” (See Am. Compl. ¶ 56; Pl.'s Opp'n Ex. K (Letter from Pl. to SHU lieutenant (Mar. 6, 2014));
see also Pl.'s Opp'n ¶ 11.) Also on March 6, Plaintiff submitted a letter to the SHU lieutenant complaining that he had not yet
received a copy of his signed affidavit. (See Pl.'s Opp'n ¶ 9; Pl.'s Opp'n Ex. I (Letter from Pl. to SHU lieutenant (Mar. 6, 2014)).)
Additionally, the next morning, Plaintiff submitted to the SHU lieutenant a request to make more than one phone call, on the
grounds that he was not placed in the SHU for breaking BOP policies. (See Am. Compl. ¶ 55; Pl.'s Opp'n Ex. L (Letter from
Pl. to SHU lieutenant (Mar. 7, 2014)); see also Pl.'s Opp'n ¶ 12.)
On March 9, 2014, Plaintiff submitted a letter requesting to speak to Susney, who, the letter said, was on duty at that time.
(Pl.'s Opp'n ¶ 10; Pl.'s Opp'n Ex. J (Letter from Pl. (March 9, 2014)).) On March 11, 2014, Plaintiff wrote a note directed to
Demeo indicating that Plaintiff “need[ed] to talk to [Demeo] about being authorized to have a third (3rd) box of legal documents
transferred with [Plaintiff] and [his] property.” (Pl.'s Opp'n Ex. W (Letter from Plaintiff to Demeo (Mar. 11, 2014)) (emphasis
omitted).) Finally, on March 12, 2014, Plaintiff again informed the warden that he was “being hindered from contacting his
lawyers[ ] [and] making a legal call” by virtue of the fact that he was being held in the SHU despite not violating any BOP
policies and that he was “restricted” in his normal activities and was “subjected to one call every 30 days.” (See Am. Compl. ¶
57; Pl.'s Opp'n Ex. H (Letter from Pl. to Warden Recktenwald (Mar. 12, 2014)); Pl.'s Opp'n Ex. X (Letter from Pl. to Warden
Recktenwald (Mar. 12, 2014)) see also Pl.'s Opp'n ¶ 8.)
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B. Procedural History
On September 29, 2014, Plaintiff brought suit against Conklin, Dachisen, Diehl, Hickman, Recktenwald, Susney, Whinnery, the
United States of America, and a number of John and Jane Doe defendants, and, in that Complaint, requested the appointment of
counsel. (Dkt. No. 1.) That same day, Plaintiff requested to proceed in forma pauperis (“IFP”), (Dkt. No. 2), and file a motion
entitled “Complaint Supplemental 'Emergency Ex Parte' Motion to Preserve Evidence,” (Dkt. No. 4), which the Court denied
without prejudice until Plaintiff served Defendants, (Dkt. No. 8). Plaintiff also moved to vacate the order granting his IFP status,
(Dkt. No. 5), relief the Court granted shortly on December 1, 2014, (Dkt. No. 6). On December 10, 2014, the Court denied
Plaintiff's request for the appointment of counsel without prejudice. (Dkt. No. 9.)
*7 On April 9, 2015, Plaintiff filed an Amended Complaint against Conklin, Dachisen, Diehl, Susney, Hickman, Recktenwald,
Whinnery, Miraglia, Magie, and the United States of America. (Dkt. No. 22.) The next day, Defendants submitted a pre-motion
letter in advance of their Motion to Dismiss, (Dkt. No. 19), and the Court set a briefing schedule for that Motion, (Dkt. No. 21).
On May 20, 2015, Defendants filed their Motion to Dismiss and accompanying papers, (Dkt. Nos. 23–27); Plaintiff filed his
opposition on June 25, 2015, (Dkt. No. 28); and Defendants filed their Reply on July 14, 2015, (Dkt. No. 29). On August 4,
2015, Plaintiff filed (1) a document entitled “Pro Se Plaintiff's Sworn Affidavit in Support of Response to Defendant's Motion
to Dismiss Amended Complaint Sworn Affidavit of Plaintiffs' [sic] Proof of PLRA Compliance,” and (2) a Motion entitled
“Complaint Supplemental '[E]mergency Ex Parte' Motion to Preserve Evidence,” which sought preservation of certain video
footage and logbooks. (Dkt. Nos. 31–32.) On August 21, 2015, Defendants filed their opposition to this latter Motion, along
with accompanying papers. (Dkt. Nos. 34–35.) On September 2, 2015, Plaintiff filed a document entitled “Pro Se Motion for
Release Detained Legal Document[ ]s/Access to Law[ ]Library,” (Dkt. No. 37), to which Defendants responded on September
10, 2015, (Dkt. Nos. 38–39), and upon which the Court ruled on September 10, 2015, (Dkt. No. 40), and as to which it clarified
its ruling on September 18, 2015 (Dkt. No. 44).
On December 9, 2015 Plaintiff filed a document entitled “Motion for Release of Legal Property/Documents and Access to Law-
Library,” (Dkt. No. 46), to which Defendants responded on December 30, 2015, (Dkt. Nos. 49–52). Additionally, on December
22, 2015, Plaintiff filed a document entitled “Pro Se Plaintiff's Response and Sanction for Spoliation of Evidence Motion to the
Defendant[ ]s['] Memorandum of Law in Response to Plaintiff's Motion To Preserve Evidence,” (Dkt. No. 48), comprising a
belated reply in support of his earlier motion for preservation of documents and a request for an adverse inference relating to that
same documents. Subsequently, Plaintiff, characterizing Defendants' December 30, 2015 opposition as a “motion,” requested
on January 20, 2016 an additional 30 days to respond, so that he could “submit exhibits” and “reach access to the SHU Law
Library,” (Dkt. No. 53), relief the Court denied on January 22, 2016, on the grounds that a reply was not necessary, (Dkt.
No. 54). Shortly thereafter, Defendants, noting a new argument raised in Plaintiff's reply, sought leave to file a sur-reply on
February 11, 2016, (Dkt. No. 58), which the Court granted the same day, (Dkt. No. 59). Defendants then filed their sur-reply.
(Dkt. Nos. 61–64.)
Additionally, on February 5, 2016, Plaintiff filed without permission a 105-page motion, entitled “Pro Se Plaintiff [sic] Motion
for Leave to File Supplemental Pleadings [sic] Pursuant to Federal Rules [sic] of Civil Procedure 15(d) & Response to the
Government Motion to Dismiss,” (Dkt. 55), which the Court noted appeared to lack relevance to this lawsuit, and granting
Plaintiff permission to submit an explanation in a two-page letter by February 29, 2016, (Dkt. No. 57). Pursuant to Plaintiff's
requests, (Dkt. Nos. 65, 67), the Court granted Plaintiff two final extensions, (Dkt. Nos. 66, 68).
II. Discussion
A. Standard of Review
“The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and under 12(b)
(6) for failure to state a claim are 'substantively identical.'” Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014
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WL 2475893, at *2 (D. Conn. June 3, 2014) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)); see also
Neroni v. Coccoma, No. 13-CV-1340, 2014 WL 2532482, at *4 (N.D.N.Y. June 5, 2014) (same), aff'd, 591 F. App'x 28 (2d
Cir. 2015). “In deciding both types of motions, the Court must accept all factual allegations in the complaint as true, and draw
inferences from those allegations in the light most favorable to the plaintiff.” Gonzalez, 2014 WL 2475893, at *2 (internal
quotation marks omitted); see also Seemann v. U.S. Postal Serv., No. 11-CV-206, 2012 WL 1999847, at *1 (D. Vt. June 4, 2012)
(same). However, “[o]n a Rule 12(b)(1) motion, ... the party who invokes the Court's jurisdiction bears the burden of proof to
demonstrate that subject matter jurisdiction exists, whereas the movant bears the burden of proof on a motion to dismiss under
Rule 12(b)(6).” Gonzalez, 2014 WL 2475893, at *2; see also Sobel v. Prudenti, 25 F. Supp. 3d 340, 352 (E.D.N.Y. 2014) (“In
contrast to the standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff asserting subject matter
jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” (internal quotation marks omitted)).
This difference as to the allocation of the burden of proof is “[t]he only substantive difference” between the standards of review
under these two rules. Smith v. St. Luke's Roosevelt Hosp., No. 08-CV-4710, 2009 WL 2447754, at *9 n.10 (S.D.N.Y. Aug. 11,
2009), adopted by 2009 WL 2878093 (S.D.N.Y. Sept. 2, 2009); see also Fagan v. U.S. Dist. Court for S. Dist. of N.Y., 644 F.
Supp. 2d 441, 446–47 & n.7 (S.D.N.Y. 2009) (same).
1. Rule 12(b)(1)
*8 “A federal court has subject matter jurisdiction over a cause of action only when it has authority to adjudicate the cause
pressed in the complaint.” Bryant v. Steele, 25 F. Supp. 3d 233, 241 (E.D.N.Y. 2014) (internal quotation marks omitted) (quoting
Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008), vacated and superseded on reh'g on other grounds, 585 F.3d 559 (2d Cir.
2009) (en banc)). “Determining the existence of subject matter jurisdiction is a threshold inquiry[,] and a claim is properly
dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional
power to adjudicate it.” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted),
aff'd, 561 U.S. 247 (2010); see also N.Y. State Citizens' Coal. for Children v. Carrion, 31 F. Supp. 3d 512, 516 (E.D.N.Y. 2014)
(same).
2. Rule 12(b)(6)
“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's
obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alterations, citations, and
internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice
if it tenders naked assertions devoid of further factual enhancement.” Id. (internal quotation marks and alterations omitted).
Instead, a complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550
U.S. at 555. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent
with the allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that is
plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[ ] across the line from conceivable to plausible,
the[ ] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible
claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common
sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'” (second alteration in original) (citation
omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the hyper-
technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing
more than conclusions.”).
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For the purposes of Defendants' Motion To Dismiss, the Court is required to consider as true the factual allegations contained
in the Amended Complaint. See Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008) (“We review de novo a district
court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all
reasonable inferences in the plaintiff's favor.” (internal quotation marks omitted)); Gonzalez v. Caballero, 572 F. Supp. 2d 463,
466 (S.D.N.Y. 2008) (same). “In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts
stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference,
and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted). Moreover, it is appropriate to consider statements made by Plaintiff “submitted in response
to a defendant[']s request for a pre-motion conference” for the purpose of resolving the instant Motion. Jones v. Fed. Bureau of
Prisons, No. 11-CV-4733, 2013 WL 5300721, at *2 (E.D.N.Y. Sept. 19, 2013). Finally, the Court construes “the submissions of
a pro se litigant ... liberally” and interprets them “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and some italics omitted).
B. Analysis
*9 Defendants have moved to dismiss portions of Plaintiff's claims on a variety of grounds. The Court will address each in turn.
1. Claims against the United States
In his Amended Complaint, Plaintiff names the United States of America as a defendant, (see Am. Compl. 1), and, further,
specifies that he brings suit against “the above Defendant(s) ... acting in their official and in their individual capacities,” (id. at
2). Defendants, however, argue (1) that Plaintiff's claims against the individual Defendants in their official capacities are also
considered suits against the United States, (Mem. of Law of Defs. in Supp. of their Mot. To Dismiss the Am. Compl. (“Defs.'
Mem.”) 20 (Dkt. No. 24)), (2) that the United States has not waived sovereign immunity for constitutional torts, (id.), and
(3) that, to the extent that Plaintiff tries to allege a tort claim, it fails for failure to exhaust his administrative remedies under
the Federal Tort Claims Act (“FTCA”), (id. at 20–21 n.8). Plaintiff responds that, while he has “show[n] ... that all 4-[ph]ases
of exhaustion under [the Prison Litigation Reform Act] w[ ]ere completed, the retaliat[ory] transfer of Plaintiff deter[r]ed his
exhaustion to the Federal Tort Claim Act § 2671 filing.” (Pl.'s Opp'n 29.) Therefore, the Court is faced with two questions:
(1) can Plaintiff bring a Bivens claim against the individual Defendants in their official capacities; and (2) does the FTCA's
administrative exhaustion requirement bar Plaintiff's suit?
a. Bivens Official Capacity Claims
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Dep't of the Army v. Blue
Fox, Inc., 525 U.S. 255, 260 (1999) (internal quotation marks omitted); see also Diaz v. United States, 517 F.3d 608, 611 (2d
Cir. 2008) (same). “The waiver of sovereign immunity is a prerequisite to subject matter jurisdiction.” Presidential Gardens
Assocs. v. U.S. ex rel. Sec. of Hous. & Urban Dev., 175 F.3d 132, 139 (2d Cir. 1999). “[W]aivers of sovereign immunity must be
'unequivocally expressed' in statutory text, and cannot simply be implied.” Adeleke v. United States, 355 F.3d 144, 150 (2d Cir.
2004) (quoting United States v. Nordic Vill., Inc., 503 U.S. 30, 33 (1992)). Moreover, a plaintiff bears the burden to demonstrate
that sovereign immunity has been waived. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (“[T]he plaintiff
bears the burden of establishing that [his or] her claims fall within an applicable waiver.”).
“The United States has not waived its sovereign immunity with respect to claims that its employees have committed
constitutional torts.” Alston v. Sebelius, No. 13-CV-4537, 2014 WL 4374644, at *8 (E.D.N.Y. Sept. 2, 2014) (quoting Castro v.
United States, 34 F.3d 106, 110 (2d Cir. 1994)). Accordingly, “Bivens claims do not lie against federal employees in their official
capacities, because such suits are considered actions against the United States, and are barred by the doctrine of sovereign
immunity.” Wright v. Condit, No. 13-CV-2849, 2015 WL 708607, at *1 (S.D.N.Y. Feb. 18, 2015) (citing Robinson v. Overseas
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Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)); see also Gonzalez v. Shahnoon, No. 15-CV-2961, 2015 WL 6118528,
at *4 (E.D.N.Y. Oct. 16, 2015) (“Bivens claims against federal officials in their official capacity are barred by the sovereign
immunity doctrine.”). Therefore, to the extent that Plaintiff (1) brings a Bivens claim against the individual defendants in their
official capacities, or (2) a tort claim against the United States directly, his claim is barred by the doctrine of sovereign immunity
and must therefore be dismissed.
b. FTCA Official Capacity Claims
*10 The same is not true, however, with respect to any claims that Plaintiff brings pursuant to the FTCA. Before delving into
why that is so, the Court notes that it is less than entirely clear what Plaintiff's putative FTCA claim is. In the section of their
Memorandum of Law in support of their Motion to Dismiss identifying Plaintiff's claims, Defendants do not even list an FTCA
claim, (see Defs.' Mem. 10)—and seemingly for good reason: the only hints that Plaintiff attempts to bring such a claim are
stray allusions to the FTCA or the “tort claim act” in the Amended Complaint's cover page or sections concerning venue and
subject matter jurisdiction, (see Am. Compl. 1, 3), and his assertion for the first time in his Opposition that he was “deter[r]ed”
from exhausting his FTCA claim, (Pl.'s Opp'n 29). Nevertheless, for the reasons that follow, whatever Plaintiff's FTCA claim
consists of, the Court lacks jurisdiction over it.
In enacting that statute, Congress created a “limited waiver by the United States of its sovereign immunity and allows for a tort
suit against the United States under specified circumstances.” Liranzo v. United States, 690 F.3d 78, 85 (2d Cir. 2012) (quoting
Hamm v. United States, 483 F.3d 135, 137 (2d Cir. 2007)); see also Regnante v. Sec. & Exch. Officials, No. 14-CV-4880, 2015
WL 5692174, at *13 (S.D.N.Y. Sept. 28, 2015) (same). An FTCA action “against the United States is the exclusive remedy for a
suit for damages for injury resulting from the negligent or wrongful act or omissions of any employee of the Government while
acting within the scope of his office or employment.” Bearam v. Sommer, No. 12-CV-1858, 2013 WL 5405492, at *8 (S.D.N.Y.
Sept. 25, 2013) (internal quotation marks omitted) (citing, inter alia, 28 U.S.C. § 2679(b)(1)); see also Finley v. Hersh, No. 12-
CV-162, 2013 WL 3450270, at *7 (D. Vt. July 9, 2013) (“As to [the plaintiff's] tort claims, his exclusive remedy for monetary
damages against the United States is under the Federal Tort Claims Act.”).
When bringing an FTCA claim, plaintiffs are required to first exhaust their administrative remedies. See, e.g., Celestine v. Mount
Vernon Neighborhood Health Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (“The FTCA requires that a claimant exhaust all administrative
remedies before filing a complaint in federal district court.”); Morrow v. Dupont, No. 08-CV-3083, 2010 WL 1005856, at *3
(E.D.N.Y. Mar. 15, 2010) (same); see also 28 U.S.C. § 2675(a) (“An action shall not be instituted upon a claim against the
United States for money damages for ... personal injury ... caused by the negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented
the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by
certified or registered mail.”). The FTCA's exhaustion requirement is “jurisdictional and cannot be waived.” Celestine, 403 F.3d
at 82; see also Bastien v. Samuels, No. 14-CV-1561, 2015 WL 5008837, at *2 (E.D.N.Y. Aug. 21, 2015) (same); R.C.L. Infant
v. Bronx-Lebanon Hosp. Ctr., No. 13-CV-6764, 2015 WL 1499745, at *4 (S.D.N.Y. Mar. 31, 2015) (same). 13 “The plaintiff
bears the burden of pleading compliance with the FTCA's exhaustion requirement.” Sherman-Amin-Braddox:Bey v. McNeil,
No. 10-CV-5340, 2011 WL 795855, at *2 (E.D.N.Y. Feb. 25, 2011) (citing In re Agent Orange Prod. Liab. Litig., 818 F.2d 210,
214 (2d Cir. 1987)); accord Foster v. Fed. Emergency Mgmt. Agency, No. 14-CV-1750, 2015 WL 5430370, at *10 (E.D.N.Y.
Sept. 15, 2015) (same); Bastien, 2015 WL 5008837, at *5 (same); see also Aurecchione v. Schoolman Transp. Sys., Inc., 426
F.3d 635, 638 (2d Cir. 2005) (“The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the
evidence.”). “With respect to claims against the BOP, the FTCA requires that an inmate mail or deliver his or her claim to the
BOP's Regional Office, and then to appeal an adverse decision in writing to the BOP prior to filing suit in U.S. District Court.”
Lockwood v. Fed. Bureau of Prisons, No. 13-CV-8104, 2015 WL 4461597, at *2 (S.D.N.Y. July 21, 2015) (citing 28 C.F.R.
§§ 543.31(c), 543.32(g)).
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*11 Here, Plaintiff has not attempted to plead or argue that he complied with the FTCA's exhaustion requirement. To the
contrary, he argues that he was “deter[r]ed” from exhausting his FTCA claim. (Pl.'s Opp'n 29.) That is not the same thing, and,
so, this Court simply does not have jurisdiction to entertain Plaintiff's FTCA claim, to the extent one even is to be found in the
Amended Complaint. See Sherman-Amin-Braddox:Bey, 2011 WL 795855, at *2 (noting that “[t]he plaintiff bears the burden of
pleading compliance with the FTCA's exhaustion requirement”). 14 However, Plaintiff's claims are dismissed without prejudice,
and Plaintiff is granted leave to file a Second Amended Complaint within 30 days of this Opinion. Consequently, if Plaintiff
has exhausted his administrative remedies pursuant to the FTCA by that time, he may assert his FTCA claim in his Second
Amended Complaint. See Vitrano v. United States, No. 06-CV-6518, 2008 WL 1752221, at *4 (S.D.N.Y. Apr. 16, 2008) (“When
and if [the plaintiff] is able to plead satisfaction of jurisdictional prerequisites [of his FTCA claim], he will be entitled to assert
these claims either by amending his complaint here or by filing a new action.”). To the extent that Plaintiff has exhausted such
remedies but his FTCA claim is nonetheless untimely, see 28 U.S.C. § 2401(b), he is free to allege facts sufficient to argue that
untimeliness should be forgiven under the doctrine of equitable tolling, see Palmer-Williams v. United States, No. 14-CV-9260,
2016 WL 676465, at *3 (S.D.N.Y. Feb. 18, 2016) (noting that “the U.S. Supreme Court recently ruled that time limitations under
the FTCA are nonjurisdictional and therefore subject to equitable tolling” (citing United States v. Kwai Fun Wong, 135 S. Ct.
1625, 1633 (2015)))—particularly if, as he says, he was “deter[r]ed” in exhausting his administrative remedies, (Pl.'s Opp'n 29).
2. PLRA Failure to Exhaust
Defendants also argue that Plaintiff has failed to administratively exhaust the bulk of his claims—indeed, all of his claims save
those relating to the December 6, 2013 dispute with Conklin—and that, accordingly, his allegations should be dismissed. (See
Defs.' Mem. 12–16.)
The Prison Litigation Reform Act (“PLRA”) provides that “[n]o 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). The exhaustion requirement applies to all
personal incidents while in prison, Porter v. Nussle, 534 U.S. 516, 532 (2002) (holding exhaustion is required for “all inmate
suits about prison life, whether they involve general circumstances or particular episodes”); see also Johnson v. Killian, 680
F.3d 234, 238 (2d Cir. 2012) (same), and includes actions for monetary damages despite the fact that monetary damages are not
available as an administrative remedy, Booth v. Churner, 532 U.S. 731, 741 (2001) (holding exhaustion is required “regardless
of the relief offered through administrative procedures”). Moreover, the PLRA mandates “'proper exhaustion'—that is, 'using
all steps that the agency holds out, and doing so properly,' ... [which] entails ... 'completing the administrative review process
in accordance with the applicable procedural rules.'” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (quoting Woodford
v. Ngo, 548 U.S. 81, 88, 90 (2006)).
*12 The Second Circuit has made clear that “administrative exhaustion is not a jurisdictional predicate,” but rather “failure to
exhaust is an affirmative defense.” Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (citation omitted). Accordingly, “defendants
bear the burden of proof[,] and prisoner plaintiffs need not plead exhaustion with particularity.” McCoy v. Goord, 255 F. Supp.
2d 233, 248 (S.D.N.Y. 2003); see also Miller v. Bailey, No. 05-CV-5493, 2008 WL 1787692, at *3 (E.D.N.Y. Apr. 17, 2008)
(explaining that the exhaustion requirement “must be pleaded and proved by a defendant” (citing Jones v. Bock, 549 U.S. 199,
216 (2007))). Further, “'[a] court may not dismiss for failure to exhaust administrative remedies unless it determines that such
remedies are available.'” Rossi v. Fischer, No. 13-CV-3167, 2015 WL 769551, at *4 (S.D.N.Y. Feb. 24, 2015) (quoting Abney
v. McGinnis, 380 F.3d 663, 668 (2d Cir. 2004)). The Second Circuit has recently made clear that “[w]hether an administrative
remedy was available to a prisoner in a particular prison or prison system is ultimately a question of law,” and “defendants bear
the initial burden of establishing, by pointing to legally sufficient sources such as statutes, regulations, or grievance procedures,
that a grievance process exists and applies to the underlying dispute.” Hubbs v. Suffolk Cty. Sheriff's Dep't, 788 F.3d 54, 59 (2d
Cir. 2015) (citation, alteration, and internal quotation marks omitted); see also Perez v. City of N.Y., No. 14-CV-7502, 2015 WL
3652511, at *2 (S.D.N.Y. June 11, 2015) (same).
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Finally, the Second Circuit has recognized certain exceptions to the exhaustion requirement that apply when “(1) administrative
remedies are not available to the prisoner; (2) defendants have either waived the defense ... or acted in such a[ ] way as to estop
them from raising the defense; or (3) special circumstances, such as a reasonable misunderstanding of the grievance procedures,
justify the prisoner's failure to comply with the exhaustion requirement.” Ruggiero v. Cty. of Orange, 467 F.3d 170, 175 (2d
Cir. 2006) (citing Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004)). “[T]he resolution of the exhaustion issue does not
necessarily fit exactly into any of these three categories, and a particular fact pattern may implicate one or a combination of these
factors.” Pagan v. Brown, No. 08-CV-724, 2009 WL 2581572, at *5 (N.D.N.Y. Aug. 19, 2009) (citing Giano, 380 F.3d at 677
n.6). Therefore, a motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should be granted only if “nonexhaustion is
clear from the face of the complaint, and none of the exceptions outlined by the Second Circuit are germane.” Lovick v. Schriro,
No. 12-CV-7419, 2014 WL 3778184, at *4 (S.D.N.Y. July 25, 2014) (alterations and internal quotation marks omitted); see
also Lee v. O'Harer, No. 13–CV–1022, 2014 WL 7343997, at *3 (N.D.N.Y. Dec. 23, 2014) (“Dismissal under Rule 12(b)(6)
for failure to exhaust is appropriate if such failure is evidenced on the face of the complaint and incorporated documents.”);
Sloane v. Mazzuca, No. 04-CV-8266, 2006 WL 3096031, at *4 (S.D.N.Y. Oct. 31, 2006) (“[B]y characterizing non-exhaustion
as an affirmative defense, the Second Circuit suggests that the issue of exhaustion is generally not amenable to resolution by
way of a motion to dismiss.” (internal quotation marks omitted)).
Of note, it is not entirely clear that the above-discussed factors—colloquially referred to as the Hemphill exceptions—remain
good law after the Supreme Court's decision in Woodford v. Ngo, 548 U.S. 81 (2006). In Woodford, the Supreme Court held
that the PLRA's exhaustion requirement mandates not merely “exhaustion simpliciter” but rather “proper exhaustion,” which
“demands compliance with an agency's deadlines and other critical procedural rules.” 548 U.S. at 83, 88, 91. Although Second
Circuit has confirmed that Woodford may indeed have imperiled the Hemphill exceptions' vitality, it has not yet explicitly
decided the question. See, e.g., Amador, 655 F.3d at 102 (“Subsequent decisions have questioned the continued viability of
this framework following the Supreme Court's decision in Woodford ....”); Ruggiero, 467 F.3d at 176 (“We need not determine
what effect Woodford has on our case law in this area, however, because [the plaintiff] could not have prevailed even under our
pre-Woodford case law.”); Rambert v. Mulkins, No. 11-CV-7421, 2014 WL 2440747, at *11 (S.D.N.Y. May 30, 2014) (noting
that “the Second Circuit has left unresolved the continuing vitality of the Hemphill exceptions in light of the Supreme Court's
ruling in Woodford v. Ngo,” but concluding that “Hemphill remains good law”).
*13 Nevertheless, when nonexhaustion is not clear from the face of the complaint, a defendant's motion can and should be
converted to a motion for summary judgment “limited to the narrow issue of exhaustion and the relatively straightforward
questions about [the] plaintiff's efforts to exhaust, whether remedies were available, or whether exhaustion might be, in very
limited circumstances, excused.” Stevens v. City of N.Y., No. 12-CV-1918, 2012 WL 4948051, at *3 (S.D.N.Y. Oct. 11, 2012)
(quoting McCoy, 255 F. Supp. 2d at 251); see also Rambert, 2014 WL 2440747, at *6 (same); Smalls v. Jummonte, No. 08-
CV-4367, 2010 WL 3291587, at *3 (S.D.N.Y. Aug. 13, 2010) (same). When doing so in the context of an action brought
by a pro se prisoner, the potential consequences of a motion for summary judgment as well as the procedural requirements
for responding to one must first be explained, and the Court must also allow Plaintiff the opportunity to take discovery. See
Hernández v. Coffey, 582 F.3d 303, 305, 307–08 (2d Cir. 2009) (noting that “[i]n the case of a pro se party ..., notice is particularly
important because the pro se litigant may be unaware of the consequences of his failure to offer evidence bearing on triable
issues” and that, “[a]ccordingly, pro se parties must have unequivocal notice of the meaning and consequences of conversion to
summary judgment” (alterations, italics, and internal quotation marks omitted)). As a result, in the PLRA exhaustion context,
courts typically have insisted upon limited discovery before converting a motion to dismiss for failure to exhaust administrative
remedies as required by the PLRA into a motion for summary judgment. See, e.g., Lovick, 2014 WL 3778184, at *5 (observing
that “when converting a Motion to Dismiss into a Motion for Summary Judgment under Fed. R. Civ. P. 12(d), notice to the
parties is mandated, particularly when a pro se litigant is involved,” and accordingly “permit[ting] the parties to engage in
limited discovery confined solely to the issue of administrative exhaustion” (italics omitted)); Pratt v. City of N.Y., 929 F. Supp.
2d 314, 319 (S.D.N.Y. 2013) (noting that the court could convert motion to dismiss into motion for summary judgment on issue
of PLRA exhaustion but observing that, if it were to do so, “the parties would be entitled to an opportunity to take discovery
and submit additional relevant evidence, and the parties have not yet been allowed such an opportunity”); Stevens, 2012 WL
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4948051, at *6 (noting that it was appropriate before converting the motion to dismiss into a summary judgment motion to
permit discovery limited to the issue of administrative exhaustion).
A number of courts have, however, declined to convert the motion where discovery may reveal whether administrative remedies
were available to a plaintiff or other special circumstances would excuse his failure to exhaust. See, e.g., McNair v. Rivera, No.
12-CV-6212, 2013 WL 4779033, at *6 (S.D.N.Y. Sept. 6, 2013) (declining to convert motion because “bifurcating discovery,
with additional motion practice, creates the potential for complication and delay,” and because “the court [did] not anticipate
that full fact discovery [would] be sufficiently laborious ... to counter [the] plaintiffs' interest in a just disposition of their suits”);
Shapiro v. Cmty. First Servs., Inc., No. 11-CV-4061, 2013 WL 1122628, at *6 (E.D.N.Y. Mar. 18, 2013) (declining to convert
Rule 12(b)(1) motion to dismiss into motion for summary judgment because discovery had not yet occurred and because FRCP
12(d) contained no authority to convert a Rule 12(b)(1) motion into a motion for summary judgment).
Here, Plaintiff's non-exhaustion is not clear from the face of the Amended Complaint, and, indeed, Plaintiff argues in his
Opposition to Defendants' Motion that his any nonexhaustion should be excused under one of the Hemphill exceptions. (See Pl.'s
Opp'n 16–17 (section entitled “'Special Circumstances' Justifying Failure To Exhaust”).) 15 Additionally, although procedurally
suspect and less than fully factually dispositive of the question surrounding whether he, indeed, exhausted, Plaintiff has
submitted a document entitled “Pro Se Plaintiff's Sworn Affidavit in Support of Response To Defendant[ ]s['] Motion To Dismiss
Amended Complaint Sworn Affidavit of Plaintiff[']s Proof of PLRA Compliance.” (Dkt. No. 31.) At the risk of inviting further
unsolicited and, frankly, unhelpful submissions, the Court surmises that the fact that Plaintiff has submitted the document—
even if not sufficient in its own right to answer the question of whether exhaustion is clear from the face of the Amended
Complaint—underscores that Plaintiff's Amended Complaint did not mean to intimate that Plaintiff had failed to exhaust his
administrative remedies.
*14 Therefore, the Court will allow conversion of the instant Motion to one for summary judgment but will allow for limited
discovery on the issue of administrative exhaustion. “Plaintiff may, for example, respond with evidence of his efforts to exhaust,
and/or evidence that (a) administrative remedies were unavailable, (b) he was inhibited from exhausting available remedies
by one or more Defendant's actions, or (c) special circumstances exist that justify his failure to comply with the exhaustion
requirements.” Smalls, 2010 WL 3291587, at *3 (citing Hemphill, 380 F.3d at 686; McCoy, 255 F. Supp. 2d at 251).
3. Personal Involvement
Defendants also move to dismiss the Amended Complaint insofar as it seeks relief against Whinnery, Dachisen, Diehl, Hickman,
and Susney, and to the extent that it seeks to hold Recktenwald liable for anything beyond her denial of Plaintiff's grievance
relating to Conklin's allegedly false incident report. (See Defs.' Mem. 17–20.) The Court agrees.
“A plaintiff bringing a claim under Bivens must allege that he has been deprived of a constitutional right by a federal agent
acting under color of federal authority.” Thomas v. Ashcroft, 470 F.3d 491, 496 (2d Cir. 2006) (citing Bivens, 403 U.S. at 389).
“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; see also Thomas,
470 F.3d at 496 (“Because the doctrine of respondeat superior does not apply in Bivens actions, a plaintiff must allege that the
individual defendant was personally involved in the constitutional violation.” (some italics omitted)); see also J.S. v. T'Kach,
No. 11-CV-103, 2014 WL 4100589, at *8 (S.D.N.Y. Aug. 20, 2014) (same).
“Before Iqbal, the most important case in this Circuit regarding the evidence required to establish the personal involvement of
a supervisory official was Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995).” Haynes v. Mattingly, No. 06-CV-1383, 2014 WL
4792241, at *7 (S.D.N.Y. Sept. 24, 2014), aff'd, (2d Cir. Oct. 27, 2015); see also Correa v. Hastings, No. 13-CV-5862, 2015 WL
6681186, at *4 (S.D.N.Y. Nov. 2, 2015) (identifying Colon as establishing the test for finding personal involvement in Bivens
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claim where showing of intent is not required). 16 Under the framework set forth in that case, courts find personal involvement
of a supervisory defendant where evidence shows:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being
informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created
a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such
a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed
the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing
to act on information indicating that unconstitutional acts were occurring.
Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (italics omitted) (quoting Colon, 58 F.3d at 873); see also
Raspardo v. Carlone, 770 F.3d 97, 116 (2d Cir. 2014) (quoting Colon, 58 F.3d at 873) (same). Since then, the Second Circuit has
recognized that the “[Iqbal] decision ... may have heightened the requirements for showing a supervisor's personal involvement
with respect to certain constitutional violations,” Grullon, 720 F.3d at 139; however, “[it] has thus far declined to resolve the
question.” Golodner v. City of New London, No. 14-CV-173, 2015 WL 1471770, at *7 (D. Conn. Mar. 31, 2015); see also
Fortunato, 2015 WL 5813376, at *6 (noting that “the continuing validity of the Colon factors has been called into question
by the Supreme Court's ruling in Iqbal”).
a. Generalized Allegations of Conspiracy
*15 Before delving into Plaintiff's specific allegations against each of these Defendants and whether he sufficiently alleges
personal involvement, it bears noting that Plaintiff alleges that “Recktenwald, Whinnery, Dachisen, Susney, Diehl, and
Hickman[ ] rec[ei]ved Plaintiff['s] grievances/complaints about ... Conklin['s] misconduct and fals[e] fraudulent incident
report ... and conspired to cover it up until Plaintiff served them their copies of his restraining order/motion on Feb. 25.14.” (Pl.'s
Opp'n 6 (citing id. Ex. O (Letter from Pl. to “Special Investigation Attorney General” (Feb. 24, 2014)), id. Ex. P (E.D. Wis.
Mot.).)) This broad assertion does not create personal involvement.
To state a legal truism, just because a litigant posits the existence of a conspiracy does not make it plausible. Indeed, the Supreme
Court has made clear, “conclusory ... allegations” are “disentitle[d] ... to the presumption of truth.” Iqbal, 556 U.S. 681. 17
Likewise, even under the Colon regime, Second Circuit law has long taught that, “merely recit[ing] the legal elements of a
successful ... claim for supervisory liability ... does not meet the plausibility pleading standard.” Dotson v. Farrugia, No. 11-
CV-1126, 2012 WL 996997, at *6 (S.D.N.Y. Mar. 26, 2012); see also Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983)
(“A complaint containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional
rights cannot withstand a motion to dismiss.”); Lindsey v. Butler, 43 F. Supp. 3d 317, 329 (S.D.N.Y. 2014) (“Conclusory
accusations regarding a defendant's personal involvement in the alleged violation, standing alone, are not sufficient ....” (internal
quotation marks omitted)), reconsideration granted in part on other grounds, No. 11-CV-9102, 2014 WL 5757448 (S.D.N.Y.
Nov. 5, 2014), reconsideration denied, No. 11-CV-9102, 2015 WL 1501625 (S.D.N.Y. Apr. 1, 2015); Vogelfang v. Capra,
889 F. Supp. 2d 489, 502 (S.D.N.Y. 2012) (“To the extent [the plaintiff] may argue that [two of the defendants] failed to
properly supervise subordinates who were violating her rights, the mere fact that a defendant possesses supervisory authority is
insufficient to demonstrate liability for failure to supervise under § 1983.” (internal quotation marks omitted)); Kee v. Hasty, No.
01-CV-2123, 2004 WL 807071, at *2 (S.D.N.Y. Apr. 14, 2004) (same); Russo v. Glasser, 279 F. Supp. 2d 136, 145 (D. Conn.
2003) (determining in Bivens action that “[the] [p]laintiff's claims of conspiracy are vague and conclusory, and accordingly are
dismissed” (emphasis omitted)).
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b. Whinnery
With respect to Whinnery, Plaintiff essentially alleges that (1) his BP-8 was submitted to Whinnery, (see Am. Compl. ¶ 29;
see also Pl.'s Opp'n ¶ 2; Pl.'s Opp'n Ex. B (BP-8 Form)), (2) that Whinnery responded to a grievance he brought relating to
Conklin's alleged tampering with his mail, (see Pl.'s Opp'n ¶ 6; Pl.'s Opp'n Ex. F (Letter from M. Whinnery to Plaintiff (Sept.
30, 2013))), and (3) that “the Supervisory Officials to [sic] actions on Feb. 25, 2014 at or around 9:a.m. or 9:30 a.m., ordered
the compound officer to enter into the educational department and called Plaintiff to the front entrance, to[ ]where Plaintiff was
escorted to the Lt.'s/Captains' office where Captain Whinnery stated, quote 'this is for my protection. [W]e want to make sure
you[']r[e] not hurt,'” (Pl.'s Opp'n 6–7).
*16 The first of these allegations fails to establish personal involvement because mere receipt of a complaint or grievance
from an inmate is insufficient to establish personal involvement, even under the Colon regime. See, e.g., Whitenack v. Armor
Med., No. 13-CV-2071, 2014 WL 5502300, at *6 (E.D.N.Y. Oct. 30, 2014) (“Since [the] plaintiff has pled no facts, beyond [the
sheriff's] presumed receipt of grievances and his position atop the correctional center ..., [the plaintiff] has failed to plausibly
plead [the sheriff's] personal involvement in any infringement of [the plaintiff's] constitutional rights.” (alterations and internal
quotation marks omitted)); Rivera v. Bloomberg, Nos. 11-CV-629, 11-CV-4325, 2012 WL 3655830, at *10 (S.D.N.Y. Aug.
27, 2012) (concluding that the “[p]laintiffs [did] not ple[a]d facts sufficient to demonstrate that [one defendant] was personally
involved in the alleged violation of their constitutional rights,” despite allegation that the “[p]laintiffs [had] informed [her]
of their claims”); Johnson v. Goord, No. 01-CV-9587, 2004 WL 2199500, at *7 (S.D.N.Y. Sept. 29, 2004) (“[T]he receipt of
letters or grievances or complaints from inmates is insufficient to impute personal involvement.”); Rivera v. Goord, 119 F. Supp.
2d 327, 344 (S.D.N.Y. 2000) (dismissing complaint against five defendants as to whom the plaintiff failed to allege any facts
demonstrating that personal involvement in or knowledge of the alleged constitutional violations, where the plaintiff instead
“merely assert[ed] that he wrote to these defendants complaining about the conduct of various [other] [d]efendants and that his
complaints were ignored”). 18 To be sure, many courts have declined to dismiss claims pursuant to this principle to situations
where the alleged violation is ongoing, such that the defendant's inaction upon receipt of the complaint allowed the violation to
persist. See, e.g., Gantt v. Lape, No. 10-CV-83, 2011 WL 673783, at *3 (N.D.N.Y. Jan. 18, 2011) (“[T]he second Colon category
—that a supervisor is personally involved if he or she failed to remedy a violation after learning of it through a report or appeal
—applies only to situations where an alleged violation is ongoing, not to situations involving a one-time violation.”), adopted by
2011 WL 673782 (N.D.N.Y. Feb. 17, 2011); Zappulla v. Fischer, No. 11-CV-6733, 2013 WL 1387033, at *9 (S.D.N.Y. Apr. 5,
2013) (“[I]f a plaintiff alleges that a constitutional violation is ongoing, and that a defendant, after being informed of a violation
through a report or appeal, failed to remedy the wrong, the plaintiff's claim against that defendant should not [be] dismissed
under Rule 12(b)(6).”); Rahman v. Fisher, 607 F. Supp. 2d 580, 585 (S.D.N.Y. 2009) (“[A] supervisor may be liable for her
failure to remedy a violation only in those circumstances where the violation is ongoing and the defendant has an opportunity
to stop the violation after being informed of it.”). Thus, the mere receipt of Plaintiff's BP-8 concerning Plaintiff's discrete, non-
continuing run-ins with Conklin cannot establish Whinnery's personal involvement for the first allegation.
*17 The second of these allegations fails because it relates to conduct that actually predates the conduct at issue in this case.
(Compare Pl.'s Opp'n Ex. F (Letter from M. Whinnery to Plaintiff (Sept. 30, 2013)) with, e.g., Am. Compl. ¶ 1 (indicating that
the day upon which Conklin first complained about smelling cigarette smoke was “[o]n or about October into November of
2013”).) While a court “evaluating the legal sufficiency of a pro se plaintiff's claims ... may rely on the plaintiff's opposition
papers,” Vlad-Berindan v. MTA N.Y. City Transit, No. 14-CV-675, 2014 WL 6982929, at *6 (S.D.N.Y. Dec. 10, 2014) (italics
omitted), a plaintiff may not assert new claims through those opposition papers, see Weerahandi v. Am. Statistical Ass'n, No. 14-
CV-7688, 2015 WL 5821634, at *8 (S.D.N.Y. Sept. 30, 2015) (noting that the plaintiff raised new claims in his papers opposing
the motion to dismiss but “declin[ing] to address them for the purposes of [the] [d]efendant's motion to dismiss” “[b]ecause
these claims were not raised in the complaint”); Bernstein v. City of N.Y., 06-CV-895, 2007 WL 1573910, at *10 (S.D.N.Y. May
24, 2007) (“New claims not specifically asserted in the complaint may not be considered by courts when deciding a motion to
dismiss.” (alterations and internal quotation marks omitted)). Because Whinnery's handling of a mail dispute several months
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before the action underlying Plaintiff's Bivens claim as described in the Amended Complaint alleges not personal involvement
but, at best, a new claim, the Court need not address it. See Weerahandi, 2015 WL 5821634, at *8.
Similar logic also dooms Plaintiff's allegations concerning Whinnery's statement to Plaintiff in the office. (See Pl.'s Opp'n 6–
7.) See also Weerahandi, 2015 WL 5821634, at *8 (declining to address new claims in the plaintiff's opposition to the motion
to dismiss “[b]ecause these claims were not raised in the complaint”). Even if this statement did not predate the events at issue
in this case, it does not fit into any of the existing claims currently included in the Amended Complaint. Additionally, one
struggles to understand what prong of the Colon analysis this statement could possibly implicate. It does not include (1) direct
participation in a constitutional violation, (2) a failure to remedy a wrong, (3) creation or perpetuation of a policy or custom
under which unconstitutional practices occurred, (4) gross negligence in supervising subordinates, or (5) failure to act upon
information. See Colon, 58 F.3d at 873.
Therefore, Plaintiff fails to adequately allege Whinnery's personal involvement in any constitutional fouls allegedly suffered
by Plaintiff.
c. Diehl
Plaintiff similarly fails to adequately plead Diehl's personal involvement. As a refresher, Plaintiff alleges that he met with Diehl,
who told Plaintiff that he had to wait for the “DHO hearing” before he could file a grievance against Conklin, and Plaintiff said
that this was “not [a] DHO matter, but an administrative matte[ ]r dealing with criminal conduct and acts by a[ ] United States
Government employee in official duties.” (Am. Compl. ¶ 30.) Plaintiff also alleges that, in early January, 2014, he received a
response from Diehl confirming receipt of Plaintiff's BP-8 and telling Plaintiff, among other things, that it was the policy of
BOP and the facility “to treat all inmates in a fair and impartial manner,” but that “[d]ue to the privacy interest of the staff
member which [Plaintiff] name[d],” the findings or result of the review of the matter could not be disclosed to Plaintiff. (Id. ¶
31; Pl.'s Opp'n Ex. C (Jan. 3, 2014 response); see also Pl.'s Opp'n ¶ 3.) At best, these assertions can be taken as an allegation
that Diehl received Plaintiff's grievance, which, as stated, is insufficient by itself to establish personal involvement. See, e.g.,
Acevedo v. Fischer, No. 12-CV-6866, 2014 WL 5015470, at *16 (S.D.N.Y. Sept. 29, 2014), appeal dismissed (Jan. 8, 2015)
(“[R]eceipt of letters or grievances is insufficient to impute personal involvement. Were it otherwise, virtually every prison
inmate who sues for constitutional torts by prison officials could name the supervisor as a defendant since the plaintiff must
pursue his prison remedies, and invariably the plaintiff's grievance will have been passed upon by the supervisor.” (internal
quotation marks omitted)).
d. Dachisen
*18 Plaintiff also does not allege enough with respect to Dachisen. In his submissions, Plaintiff makes only two allegations that
unambiguously refer to Dachisen. 19 First, Plaintiff alleges that, “[o]n 1 //6/2014, Plaintiff filed his BP-9 administrative remedy
to acting Warden, Mr. Dachisen who intern [sic] once against turned Plaintiff's BP-9 over to SIS, instead of the administrative
rem[e]d[ ]y co[o]rdinator for the facility.” (Am. Compl. ¶ 33.) Second, in his opposition, Plaintiff also states that he “verbally
placed [Dachisen] on notice on 12/9/2013 at main-line of ... Conklin['s] misconduct and false and fraudulent incident report[ ]
as[ ]well[ ]as the violations that [were] committed against Plaintiff being sent to the SHU, was in control and Acting Warden
of the FCI [O]tisville Administration before ... Recktenwald took control.” (Pl.'s Opp'n 2–3.) As with Diehl, mere allegations
that Plaintiff's complaints made their way to Dachisen are not sufficient. See Acevedo, 2014 WL 5015470, at *16; see also
Barnes v. Prack, No. 11-CV-857, 2012 WL 7761905, at *6 (N.D.N.Y. Sept. 7, 2012) (finding that the plaintiff's allegations that
he spoke with a prison superintendent about instances of abuse that the plaintiff was allegedly experiencing did not establish
personal involvement due to lack of facts showing the superintendent could remedy the problem), adopted by 2013 WL 1121353
(N.D.N.Y. Mar. 18, 2013).
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e. Hickman
Plaintiff likewise fails to satisfactorily allege Hickman's personal involvement. Plaintiff alleges that, a few weeks after
submitting his BP-9, Hickman called him to the lieutenant's office to address his BP-9 grievance form against Conklin. (Am.
Compl. ¶ 34; see also Pl.'s Opp'n ¶ 4; Pl.'s Opp'n Ex. D (BP-9 Form and Response).) Plaintiff allegedly told the “lieutenant”
that, if Conklin were to continue to work in the unit, Plaintiff would wish to proceed and exhaust his administrative remedy
because it was clear to him that “this F.C.I. Otisville administration has no intentions o[f] ever remed[y]ing this situation of the
officer submission of fraudulent and misleading incident reports.” (Am. Compl. ¶ 34.) 20 Hickman allegedly then “replied that
he would forward the process, and give his response so Plaintiff can continue exhau[s]ting his BOP administrative remedy.” (Id.
¶ 35.) Additionally, Plaintiff alleges that Hickman (along with Susney) “waited for Plaintiff to state an affidavit stating the
reason why Plaintiff filed his motion” before processing Plaintiff into the SHU. (Id. ¶ 46.) 21
*19 Here, Plaintiff's allegations are that Hickman helped Plaintiff move his grievance process along and waited for Plaintiff to
fill out an affidavit. As is hopefully clear by now, the first founders because mere receipt of a grievance—if that is even what is
alleged here—does not amount to personal involvement. See Acevedo, 2014 WL 5015470, at *16; Vega v. Artus, 610 F. Supp.
2d 185, 199 (N.D.N.Y. 2009) (observing that the facility superintendent's act of “referring [the plaintiff's] letters to staff for
investigation [was] not sufficient to establish [his] personal involvement”). The second fails because it is not clear how waiting
for Plaintiff to fill out an affidavit could amount to personal involvement in depriving him of his constitutional rights. Indeed,
if receiving a grievance detailing the facts at issue in this case cannot create personal involvement, simply alleging Hickman's
presence while Plaintiff filled out an affidavit falls shorter still.
f. Recktenwald
Plaintiff makes a number of allegations about Recktenwald; however, they can be distilled into two categories: First, Plaintiff
alleges that, on February 12, 2014, she “responded to Plaintiff's BP-9 stating that 'On December 10, 2013, the UDC found you
committed [Code] 312, [I]nsolence [T]owards a [S]taff Member and sa[n]ctioned, accordingly. Additionally, you also admitted
that you made the statement in reference to the staff member,'” (Am. Compl. ¶ 41; see also Pl.'s Opp'n ¶ 5; Pl.'s Opp'n Ex. E.), a
statement which Conklin read as giving him “the green light to do as he pleased,” (Id. ¶ 42). Second, Plaintiff also alleges that
he submitted a number of complaints to Recktenwald, the details of which need not be recited here, or that she was otherwise
on notice. (See Am. Compl. ¶¶ 52–54, 57; Pl.'s Opp'n ¶¶ 7, 8, 13; Pl.'s Opp'n 6; Pl.'s Opp'n Ex. G) (Letter from Pl. to Warden
(Mar. 4, 2014)); Pl.'s Opp'n Ex. H (Letter from Pl. to Warden Recktenwald (Mar. 12, 2014)); (Pl.'s Opp'n Ex. M (Letter from
Pl. to Warden (Mar. 5, 2014)).) Defendants, apparently, do not seek dismissal of Plaintiff's claims against Recktenwald on the
basis of personal involvement with respect to the first category. (See Defs.' Mem. 19 (“Only Plaintiff's exhausted allegations
regarding Recktenwald's denial of Plaintiff's BP-9 Form could be arguably sufficient to withstand a motion to dismiss, because
the allegation that Recktenwald or any other defendant was on notice of Plaintiff's complaints fails to state a claim.”).) With
respect to the latter, suffice it to say that “the receipt of letters or grievances or complaints from inmates is insufficient to impute
personal involvement,” Johnson, 2004 WL 2199500, at *7, and generalized allegations of knowledge are too conclusory, see
Iqbal, 556 U.S. at 680–81. Therefore, the Court grants the Motion to dismiss Recktenwald with regard to this second category.
g. Susney
Finally, Plaintiff's claim also fails with respect to Susney. Along with Hickman, Susney allegedly “waited for Plaintiff to state
an affidavit stating the reason why Plaintiff filed his motion” before he was processed into the SHU. (Am. Compl. ¶ 46.)
Additionally, Susney “stated to Plaintiff that after he signed the affidavit Plaintiff would receive a[ ] copy of this document,” but
failed to subsequently provide one. (Id.; see also id. ¶ 53 (indicating that he wrote to Recktenwald that he signed an affidavit on
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February 25, 2014 with Susney but had not received a copy).) Susney also allegedly “met ... Plaintiff in R & D” before Plaintiff's
transfer from F.C.I. Otisville and “stated 'because it involves staff, Plaintiff can[ ]not receive a copy of his own affidavit.'” (Id. ¶
46.) Plaintiff also alleges that, on March 6, 2014 and on March 9, 2014, he requested to speak with Susney, knowing he was on
duty at the latter time but that Susney did not show up to speak with Plaintiff. (See Pl.'s Opp'n ¶ 9–10; Pl.'s Opp'n Ex. I (Letter
from Pl. to SHU lieutenant (Mar. 6, 2014)), Pl.'s Opp'n Ex. J (Letter from Pl. (March 9, 2014)).) The Court is frankly unsure
how Plaintiff's allegations about Susney could be construed to allege involvement in the purported constitutional infractions at
issue in this case. While it is obligatory to liberally construe Plaintiff's submissions, see Triestman, 470 F.3d at 474–75, there
exists a line between liberal construction and gratuitous revision. Because, ultimately, it is Plaintiff's burden to plead personal
involvement, cf. Ramrattan v. Fischer, No. 13-CV-6890, 2015 WL 3604242, at *10 (S.D.N.Y. June 9, 2015) (“Plaintiff has not
met the burden of pleading personal involvement for any of the 12 individual [d]efendants.”), and because Plaintiff has not
done so, his claim against Susney must also be dismissed.
4. Qualified Immunity
*20 Defendants further argue that “Plaintiff's Bivens claims against Whinnery, Dachisen, Hickman, Susney, Diehl, and
Recktenwald fail for the additional reason that these Defendants are entitled to a qualified immunity from suit on such
claims.” (Defs.' Mem. 19.) Plaintiff's claims against Whinnery, Dachisen, Hickman, Susney, and Diehl have, however, already
been dismissed for failure to allege personal involvement. There is thus no need to address the qualified immunity argument
as to those Defendants. See Kelsey v. Cty. of Schoharie, 567 F.3d 54, 62 (2d Cir. 2009) (“When the facts, viewed in light most
favorable to the plaintiff, do not demonstrate that an officer's conduct violated a constitutional right, the court need not further
pursue the qualified immunity inquiry.”); see also Dawson v. City of N.Y., No. 13-CV-5956, 2014 WL 5020595, at *2 (S.D.N.Y.
Oct. 8, 2014) (same); Cooper v. Marrero, No. 11-CV-9260, 2013 WL 2529723, at *5 (S.D.N.Y. June 11, 2013) (same). Because
Defendants did not move to dismiss the claim for denying Plaintiff's grievance on appeal asserted against Recktenwald on the
grounds of insufficient personal involvement, however, the Court must consider whether it may be dismissed pursuant to the
doctrine of qualified immunity.
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson
v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation marks omitted). Qualified immunity “'gives government officials
breathing room to make reasonable but mistaken judgments' by 'protect[ing] all but the plainly incompetent or those who
knowingly violate the law.'” City & Cty. of S.F. v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (alteration in original) (quoting Ashcroft
v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)). Because qualified immunity is “an affirmative defense [that] ... reflects an immunity
from suit rather than a mere defense to liability[,] ... it is appropriate to decide the issue of qualified immunity, when raised, at an
early stage of the litigation, such as when deciding a preanswer motion to dismiss.” Betts v. Shearman, No. 12-CV-3195, 2013
WL 311124, at *4 (S.D.N.Y. Jan. 24, 2013) (italics and internal quotation marks omitted), aff'd, 751 F.3d 78 (2d Cir. 2014).
In determining whether a right is clearly established, “th[e] inquiry turns on the objective legal reasonableness of the action,
assessed in light of the legal rules that were clearly established at the time it was taken.” Pearson, 555 U.S. at 244 (internal
quotation marks omitted). “In the Second Circuit, 'a right is clearly established if (1) the law is defined with reasonable clarity,
(2) the Supreme Court or the Second Circuit has recognized the right, and (3) a reasonable defendant would have understood
from the existing law that his conduct was unlawful.'” Schubert v. City of Rye, 775 F. Supp. 2d 689, 702 (S.D.N.Y. 2011) (quoting
Luna v. Pico, 356 F.3d 481, 490 (2d Cir. 2004)).
Rectkenwald is entitled to qualified immunity. As she accurately recounted when denying Plaintiff's BP-9, Plaintiff alleged
that “staff made and submitted fraudulent, false[,] and misleading statements personally targeting [Plaintiff].” (Pl.'s Opp'n Ex.
E (BP-9 Response); see also id. Ex. D (BP-9 Form and Response).) Moreover, Recktenwald also noted that “[a] review of
the matter” was conducted and concluded that “[Plaintiff] admitted that [he] made the statement [at issue in his disciplinary
proceedings] in reference to the staff member.” (Pl.'s Opp'n Ex. E (BP-9 Response).) Recktenwald additionally informed Plaintiff
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of his right to appeal her decision to the Regional Director for the Northeast Region of the Federal Bureau of Prisons. (Id.) This
is enough to safely conclude, at the absolute minimum, “a reasonable [warden] would not have understood from the existing
law that her conduct was unlawful.” Schubert, 775 F. Supp. 2d at 702; see also Green v. Bauvi, 46 F.3d 189, 195 (2d Cir. 1995)
(“[A]dherence to [state] regulations may be pertinent in considering whether a reasonable official would have known his [or her]
actions violated the Constitution.”); Selah v. Fischer, No. 09-CV-1363, 2015 WL 1893340, at *13 (N.D.N.Y. Apr. 15, 2015)
(dismissing complaint against correctional facility superintendent on qualified immunity grounds where “he denied plaintiff's
appeals in connection with the grievances based on his belief that plaintiff was seeking relief that he was not authorized to
provide, and he provided plaintiff with instructions regarding how to seek the relief requested” and followed all relevant New
York State Department of Corrections and Community Supervision policies). 22 Additionally, given that qualified immunity
may shield the prison official who denies an inmate's grievance following an investigation, see Cancel v. Mazzuca, 205 F. Supp.
2d 128, 145 (S.D.N.Y. 2002) (finding prison official who denied a grievance on the grounds that he believed a Department
of Corrections employee who said the conduct at issue was the result of a “mere misunderstanding” was entitled to qualified
immunity), and given that this protection in such cases extends to the official who affirms that denial, see Cancel v. Mazzuca,
No. 01-CV-3129, 2002 WL 1891395, at *5 (S.D.N.Y. Aug. 15, 2002) (dismissing as futile proposed addition of new defendants
who affirmed denial of grievance where the employee who denied the grievance was entitled to qualified immunity, reasoning
that the proposed defendants would also be entitled to qualified immunity), it stands to reason that Recktenwald should not be
stripped of the same immunity, absent some legally sufficient reason to think her “plainly incompetent or ... [to have] knowingly
violate[d] the law.” Sheehan, 135 S. Ct. at 1774 (internal quotation marks omitted).
5. Plaintiff's § 1986 Claim
*21 Defendants also move to dismiss Plaintiff's § 1986 claim for neglect to prevent conspiracy on the grounds that he has
not alleged the existence of a conspiracy sufficient under § 1985. (Defs.' Mem. 21–22.) Defendants' point is a fair one, and,
accordingly, Plaintiff's § 1986 claim is dismissed.
“[A] § 1986 claim must be predicated upon a valid § 1985 claim.” Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d
1085, 1088 (2d Cir. 1993); see also Karam v. Cty. of Rensselaer, No. 13-CV-1018, 2016 WL 51252, at *21 (N.D.N.Y. Jan. 4,
2016) (same); Poulos v. City of N.Y., No. 14-CV-3023, 2015 WL 5707496, at *8 (S.D.N.Y. Sept. 29, 2015) (same); Townsend
v. New York, No. 14-CV-6079, 2015 WL 4692604, at *7 (E.D.N.Y. Aug. 6, 2015) (same). The Second Circuit has made clear
that the four elements of a § 1985(3) claim are:
(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of
persons of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in
furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived
of any right of a citizen of the United States.
Mian, 7 F.3d at 1087 (citing United Bhd. of Carpenters, Local 610 v. Scott, 463 U.S. 825, 828–29 (1983)); see also Townsend,
2015 WL 4692604, at *7 (same); Robinson v. Bratton, No. 14-CV-2642, 2014 WL 3496460, at *6 (E.D.N.Y. July 8, 2014)
(same). 23 Additionally, “the conspiracy must also be motivated by 'some racial or perhaps otherwise class-based, invidious
discriminatory animus behind the conspirators' action.'” Mian, 7 F.3d at 1088 (quoting Scott, 463 U.S. at 829); see also Ramirez
v. Port Auth., No. 15-CV-3225, 2015 WL 9463185, at *7 (S.D.N.Y. Dec. 28, 2015) (same). While “[§] 1985(3) covers classes
beyond race,” the term “class” as used in § 1985(3) “unquestionably connotes something more than a group of individuals who
share a desire to engage in conduct that the § 1985(3) defendant disfavors.” Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015)
(internal quotation marks omitted). Consistent with this logic, the Second Circuit has explicitly rejected the proposition that “[§]
1985(3) encompasses classes of jailhouse lawyers ....” Id. At best, that is essentially the argument that Plaintiff makes. (See Am.
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Compl. ¶¶ 67–71.) He alleges no action taken against him as, for instance, a member of a racial, gender, or political subgroup.
Cf. Dolan, 794 F.3d at 296 (citing N.Y. State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1359 (2d Cir. 1989); Keating v.
Carey, 706 F.2d 377, 387 (2d Cir. 1983)). He, therefore, fails to make out a § 1985 claim and, a fortiori, a § 1986 claim.
6. Plaintiff's Access-to-the-Courts Claim
*22 Next, Plaintiff brings a claim under the Fifth and Sixth Amendments for a “violation of [his right of] access to the
court[s],” (Am. Comp. ¶ 83), which Defendants move to dismiss, (Defs.' Mem. 22–23). 24
First, Plaintiff cannot make out a Sixth Amendment claim because his Sixth Amendment rights are not implicated by the facts
alleged. “The Sixth Amendment provides that '[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the
Assistance of Counsel for his defence.'” United States v. Mills, 412 F.3d 325, 328 (2d Cir. 2005) (second alteration in original)
(quoting U.S. Const. amend. VI). However, the words “prosecutions” and “accused” are not mere surplusage, and “the Sixth
Amendment only guarantees the right to counsel after formal proceedings have begun against a suspect.” Fountain v. City of
White Plains, No. 13-CV-7016, 2015 WL 5602869, at *6 (S.D.N.Y. Sept. 23, 2015); see also Mills, 412 F.3d at 328 (“The Sixth
Amendment right to counsel does not attach until a prosecution is commenced ....”); Smart v. City of N.Y., No. 08-CV-2203,
2009 WL 862281, at *8 (S.D.N.Y. Apr. 1, 2009) (“[T]he Sixth Amendment right to counsel does not attach until the Government
commits itself to prosecution by initiating adversary judicial proceedings.”) (citing Moran v. Burbine, 475 U.S. 412, 431 (1986));
cf. Benjamin v. Fraser, 264 F.3d 175, 186 (2d Cir. 2001) (explaining that “[t]he reason pretrial detainees need access to the
courts and counsel is not to present claims to the courts, but to defend against the charges brought against them”). However,
here, Plaintiff has made no allegations that would suggest his desire to speak with his attorney had anything to do with defending
criminal proceedings. (See Am. Comp. ¶ 83.) To the contrary, Plaintiff alleges that he “rec[ei]ved a correspondent letter from
attorney Bonnie M. Mangold regard[ing] civil action settlement conditions.” (Id. ¶ 65 (emphasis added)); (see also id. ¶ 83
(referring to “attorney Ms. Bonnie Mangold from the law office of Reed[ ]Smith” in a paragraph alleging that “Otisvill[e]
staff and administration ignored and refused the request for legal phone call to attorney”).) “[T]he Sixth Amendment does not
govern civil cases.” Turner v. Rogers, 564 U.S. 431, 131 S. Ct. 2507, 2516 (2011). Consequently, his Sixth Amendment right-
to-counsel claim must be dismissed.
*23 Plaintiff's Fifth Amendment right-of-access-to-the-courts claim is also infirm, albeit for different reasons. 25 To be sure,
“[p]risoners have a constitutional right of access to the courts,” Bourdon, 386 F.3d at 92 (alterations omitted), and courts have
construed pro se prisoner's claims related to ability to call their attorney outside the context of criminal proceedings as an access-
to-the-courts claim, see, e.g., Groenow v. Williams, No. 13-CV-3961, 2014 WL 941276, at *7 (S.D.N.Y. Mar. 11, 2014) (report
and recommendation) (“To the extent that [the plaintiff] was communicating with his attorney on monitored lines regarding
a matter other than his criminal prosecution or appeal, his claims arise under the right of access to the courts.”). However,
an inmate's right to a telephone is not unlimited, and courts routinely consider whether a prison's phone restrictions have
wholly closed off his communications with his attorney. See, e.g., Huggins v. Schriro, No. 14-CV-6468, 2015 WL 7345750,
at *9 (S.D.N.Y. Nov. 19, 2015) (report and recommendation) (“Because inmates have no right to unlimited telephone calls, a
constitutional violation only exists if the inmate was stripped of alternate methods of communication.” (citation and internal
quotation marks omitted)); Martinez v. Healey, No. 14-CV-302, 2014 WL 5090056, at *3 (S.D.N.Y. Oct. 10, 2014) (noting that
“inmates have no right to unlimited telephone calls” and that “phone restrictions do not impinge on a prisoner's constitutional
rights where an inmate has alternate means of communicating with the outside world, and particularly with counsel” (alteration
and internal quotation marks omitted)); Edwards v. Horn, No. 10-CV-6194, 2012 WL 760172, at *5 (S.D.N.Y. Mar. 8, 2012)
(“Because inmates have no right to unlimited telephone calls, [the plaintiff] must, but fails to, allege that he was stripped of
alternate methods of communication to state a violation of his constitutional rights” (alterations, citation, and internal quotation
marks omitted)); Henry v. Davis, No. 10-CV-7575, 2011 WL 3295986, at *2 (S.D.N.Y. Aug. 1, 2011) (“Phone restrictions
do not impinge on a prisoner's constitutional rights where an inmate has alternate means of communicating with the outside
world, and particularly with counsel.”), adopted by 2011 WL 5006831 (S.D.N.Y. Oct. 20, 2011); Paulino v. Menifee, No. 00-
CV-5719, 2001 WL 243207, at *2 (S.D.N.Y. Mar. 9, 2001) (denying injunction to restore phone privileges where inmate did
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not allege that alternate means of communication were inadequate); Bellamy v. McMickens, 692 F. Supp. 205, 214 (S.D.N.Y.
1988) (“[R]estrictions on inmates' access to counsel via the telephone may be permitted as long as prisoners have some manner
of access to counsel.”); Pino v. Dalsheim, 558 F. Supp. 673, 674–75 (S.D.N.Y. 1983) (permitting restrictions on telephone use in
light of the inmate's unlimited opportunities to communicate with his attorney by, among other options, written correspondence).
Here, Plaintiff has not alleged that he had no other method of accessing counsel; in fact, if anything, Plaintiff's allegations
suggest that he was able to correspond with her by letter. (See Am. Compl. ¶ 65.)
Plaintiff's claim relating to his access to the courts suffers from a second deficiency, however, which is that he alleges no injury
from it. When asserting a claim for deprivation of the right to access the courts, a plaintiff must allege facts sufficient to show
that he suffered an actual injury. See Lewis v. Casey, 518 U.S. 343, 349 (1996); see also Groenow, 2014 WL 941276, at *7
(“[A] plaintiff must show that deprivation of his right to access the courts unfairly prejudiced his case.” (citing Lewis, 518
U.S. at 353)); Quezada v. Roy, No. 14-CV-4056, 2015 WL 5970355, at *12 (S.D.N.Y. Oct. 13, 2015) (“In order to establish a
constitutional violation based on a denial of access to the courts, a plaintiff must show that the defendant's conduct was deliberate
and malicious, and that the defendant's actions resulted in an actual injury to the plaintiff.” (internal quotation marks omitted)).
To do so, a plaintiff must “demonstrate that the defendant's conduct frustrated the plaintiff's efforts to pursue a nonfrivolous
claim.” Quezada, 2015 WL 5970355, at *12 (internal quotation marks omitted); see also Monsky v. Moraghan, 127 F.3d 243,
247 (2d Cir. 1997) (“In order to establish a violation of a right of access to courts, a plaintiff must demonstrate that a defendant
caused actual injury, i.e., took or was responsible for actions that hindered a plaintiff's efforts to pursue a legal claim.” (alterations
and internal quotation marks omitted)); Williams v. Superintendent of Brooklyn Det. Ctr., No. 15-CV-6085, 2015 WL 7281646,
at *2 (E.D.N.Y. Nov. 17, 2015) (“[T]he plaintiff must show that a nonfrivolous legal claim had been frustrated or was being
impeded due to the actions of prison officials.” (alterations and internal quotation marks omitted)). “Mere delay in being able
to work on one's legal action or communicate with the courts does not rise to the level of a constitutional violation.” Davis v.
Goord, 320 F.3d 346, 352 (2d Cir. 2003) (internal quotation marks omitted); see also Smith v. City of N.Y., No. 14-CV-443,
2015 WL 1433321, at *3 (S.D.N.Y. Mar. 30, 2015) (same).
*24 Although it is not entirely clear, Plaintiff seems to argue that he suffered prejudice in that the “attorney contact stated that
if there was any questions in the proceedings, Plaintiff was to contact them.” (Am. Compl. ¶ 83.) Because forcing Plaintiff to
correspond with attorneys by means other than a phone call seems to eke out, at best, a claim for “mere delay,” Davis, 320 F.3d
at 352, Plaintiff's allegations do not state a constitutional injury. Indeed, nothing else in his submissions indicates that Plaintiff
has suffered the type of injury needed to state an access-to-courts claim. See Lewis, 518 U.S. at 349, 353. Therefore, Plaintiff's
access-to-the-courts claim is dismissed.
7. Plaintiff's Retaliation Claims
Next, Defendants move to dismiss Plaintiff's claims for retaliation, arguing that some of his retaliation claims are unexhausted
and the others relating to Conklin—contained in ¶¶ 5–6, 10–14, and 24–26—fail to state a claim. (Defs.' Mem. 23–25.) Because
the Court cannot reach the former question until after the Parties have had the chance to engage in limited discovery concerning
the exhaustion issue for the reasons discussed earlier, the Court takes up the question of whether Plaintiff has stated a claim
for the false incident report grievance.
“To state a First Amendment retaliation claim ..., a plaintiff must allege '(1) that the speech or conduct at issue was protected,
(2) that the defendant took adverse action against the plaintiff, and (3) that there was a causal connection between the protected
speech and the adverse action.'” Dolan, 794 F.3d at 294 (quoting Espinal v. Goord, 558 F.3d 119, 128 (2d Cir. 2009)); see
also Quezada, 2015 WL 5970355, at *19 (same); Ramrattan, 2015 WL 3604242, at *12 (same). 26 The Second Circuit has
made clear that courts are to “approach prisoner retaliation claims 'with skepticism and particular care,' because 'virtually any
adverse action taken against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional
violation—can be characterized as a constitutionally proscribed retaliatory act.'” Davis, 320 F.3d at 352; see also Dolan, 794
F.3d at 295 (same); Corley v. City of N.Y., No. 14-CV-3202, 2015 WL 5729985, at *8 (S.D.N.Y. Sept. 30, 2015) (same). “Only
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retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional
rights constitutes an adverse action.” Davis, 320 F.3d at 353 (internal quotation marks omitted). A corollary of that proposition,
however, is that the “ordinary firmness” inquiry is not subjective, and a prisoner may still suffer adverse action even where
undeterred. See Gill v. Pidlypchak, 389 F.3d 379, 384 (2d Cir. 2004) (“[T]he fact that a particular plaintiff ... responded to
retaliation with greater than 'ordinary firmness' does not deprive him of a cause of action.”); see also Nelson v. McGrain, No.
12-CV-6292, 2015 WL 7571911, at *1 (W.D.N.Y. Nov. 24, 2015) (“[A] prisoner can state a retaliation claim in the absence of
actual deterrence.” (quoting Nelson v. McGrain, 596 F. App'x 37, 38 (2d Cir. 2015))).
Regardless of whether Plaintiff has suffered an adverse action, his claim fails because he has not pled that he engaged in protected
activity causally connected to at least potentially adverse action. By the Court's liberal reading, Plaintiff has alleged several
actions that arguably could count as protected activity:
*25 • First, Plaintiff alleges that, sometime in approximately October or November 2013, he “addressed th[e] issue” of
Conklin's authority to restrict television use at 10 pm if Conklin continued to smell cigarette smoke. (See Am. Compl.
¶¶ 1–4.)
• Next, Plaintiff alleges that, on December 6, 2013, he demanded to know why Conklin wanted his ID and told him that
he was “not [Plaintiff's] unit officer and [that] [Plaintiff] should know why [his] ID [was] being requested.” (See id. ¶¶
8, 12, 24–26.)
• Plaintiff alleges that, on December 6, 2013, he told the inmates in reference to Conklin's request for IDs, “that he has me
fucked up because I don[']t associate with anyone in DA like that.” (Id. ¶ 14.)
• Fourth, on December 6, 2013, Plaintiff spoke to an officer and Ferdula about his interchange with Conklin, and then
described the situation when asked to Heli. (Id. ¶¶ 16–17, 19.)
Similarly, Plaintiff alleges the following potentially adverse actions:
• Since the date in October or November 2013 when Plaintiff made his initial comments to Conklin, “Conklin's attitude
changed towards ... Plaintiff, [in that] every time ... Conklin s[aw] Plaintiff, he verbally and ph[ys]ically har[ ]assed ...
Plaintiff,” and further made “[s]arcastic comment[ ]s ... to ... Plaintiff,” “pat-s[ ]earch[ed] Plaintiff down and check[ed]
Plaintiff's carrying bag,” “search[ed] Plaintiff[,] and stat[ed] that there will be a[ ]lot of changes when [he] start[s] to work
back in [another unit] next quarter.” (Id. ¶ 6.) 27
• On December 6, 2013, Conklin “walked past everyone else [in the unit] [and] ... walked directly to Plaintiff and asked
Plaintiff for his ID,” telling Plaintiff when he asked why his ID was being requested that he would “find out soon,” and
then asking other inmates for their ID to “make it look that [Conklin] was not singling Plaintiff out, or personally attacking
[him].” (See id. ¶¶ 8, 12–13.)
• Sometime on December 6, 2013, Conklin prepared a “false and fraudulent incident report.” (See id. ¶¶ 17–19, 24–26.) 28
• On December 6, 2013, Plaintiff was placed in the SHU, where he received a copy of Conklin's false incident report. (See
id. ¶¶ 24–26.)
*26 At the outset, it merits clarifying that not every statement an inmate makes in prison is afforded First Amendment
protection. Indeed, “[t]he Supreme Court has held that '[i]n a prison context, an inmate does not retain those First Amendment
rights that are inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.”
Pilgrim v. Luther, 571 F.3d 201, 205 (2d Cir. 2009) (second alteration in original) (quoting Jones v. N.C. Prisoners' Labor
Union, Inc., 433 U.S. 119, 129 (1977)); see also Williams v. Walter Ford, No. 14-CV-1181, 2015 WL 8490910, at *5 (D. Conn.
Dec. 10, 2015) (same).
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Nevertheless, there is authority in the Second Circuit for the proposition that verbal complaints can be protected action for
purposes of a First Amendment retaliation claim. See, e.g., Tirado v. Shutt, No. 13-CV-2848, 2015 WL 774982, at *9 (S.D.N.Y.
Feb. 23, 2015) (“[C]ase law in this Circuit indicates that a prisoner's oral complaints to a correction officer may serve as the basis
for a First Amendment retaliation claim.”), adopted in part by 2015 WL 4476027 (S.D.N.Y. July 22, 2015); Lunney v. Brureton,
No. 04-CV-2438, 2007 WL 1544629, at *24 n.10 (S.D.N.Y. May 29, 2007) (“The [c]ourt notes that some case law indicates that
a prisoner's oral complaints to prison guards may provide the basis for a retaliation claim under § 1983.”); Smith v. Woods, No.
03-CV-480, 2006 WL 1133247, at *10 (N.D.N.Y. Apr. 24, 2006) (“I acknowledge that the First Amendment protects, not only
the filing of written grievances and complaints, but, under some circumstances, the making of oral complaints to corrections
officers.”), aff'd, 219 F. App'x 110 (2d Cir. 2007); Gill v. Riddick, No. 03-CV-1456, 2005 WL 755745, at *10 (N.D.N.Y. Mar.
31, 2005) (finding the “filing of the grievance agenda and making oral complaints” to be “clearly protected”). But see Allah-
Kasiem v. Sidorowicz, No. 09-CV-9665, 2012 WL 2912930, at *1, *8–9 (S.D.N.Y. July 17, 2012) (rejecting plaintiff's argument
that he filed an “'oral sexual harassment complaint' or grievance” when he made an “extremely graphic” comment to a prison
guard, reasoning that, “[h]aving chosen not to use the grievance process ..., [the plaintiff] [could not] claim that his comments
to [the guard] [were] entitled to the same protection that adheres to properly filed grievances”).
However, courts in the Second Circuit and others have distinguished between unambiguously protected activity and situations
where an inmate verbally confronts a prison official. See, e.g., Rodriguez v. Phillips, 66 F.3d 470, 478 (2d Cir. 1995) (finding
in the qualified immunity context “no clearly established First Amendment right to approach and speak to” an officer who
allegedly retaliated against the plaintiff inmate where the plaintiff “'approached [the officer] and ... told [him] that according
to institutional policy that was wrong what he was doing'” after seeing that the officer “'was trying to implement something on
another inmate'” who “'couldn't defend himself'”); Young v. Ice, No. 14-CV-1475, 2015 WL 471675, at *3 (N.D. Ohio Feb. 4,
2015) (“While prisoners have a clear right protected by the First Amendment to file formal grievances against prison officials,
arguing with corrections officers, or being insolent or disrespectful toward corrections officers is not conduct protected by the
First Amendment.” (citation omitted)); Martin v. Hurley, No. 14-CV-66, 2014 WL 7157336, at *2 (E.D. Mo. Dec. 15, 2014)
(“Prisoners have no constitutionally protected right to confront staff and discuss issues with them, particularly when ordered not
to do so.”); Riddick v. Arnone, No. 11-CV-631, 2012 WL 2716355, at *7 (D. Conn. July 9, 2012) (finding the inmate plaintiff's
statement that a correctional facility employee could not issue a disciplinary report “more like a schoolyard taunt than an attempt
to petition the government for redress of grievances,” and, therefore, unprotected); Rossi v. Goord, No. 00-CV-1521, 2006 WL
2811505, at *10 n.16 (N.D.N.Y. Sept. 28, 2006) (“The questioning by an inmate of a lawful order given by a corrections officer,
however, does not constitute protected speech deserving of First Amendment protection.”) (citing Rodriguez, 66 F.3d at 478–
79), reconsideration granted in part on other grounds, 2007 WL 952051 (N.D.N.Y. Mar. 29, 2007); Garrido v. Coughlin, 716
F. Supp. 98, 101 (S.D.N.Y. 1989) (“While there is a claim of retaliation here ..., it was not for exercise of [the plaintiff's] First
Amendment rights; rather, the alleged retaliation arose out of a verbal confrontation.”). But cf. Lugo v. Van Orden, No. 07-
CV-879, 2008 WL 2884925, at *3 n.4 (N.D.N.Y. July 23, 2008) (“A simple discussion with a corrections officer would not be
protected speech unless that discussion was in the form of a complaint or concern about the officer or some policy involved.”).
*27 The Court does not underestimate the importance—both as a practical and a constitutional matter—of preserving inmates'
ability to bring grievances. See, e.g., Davis, 320 F.3d at 352–53 (“[T]he filing of prison grievances is a constitutionally protected
activity ....”). Nevertheless, there is a distinction to be made between the inmate who stridently challenges a prison official's
authority in the moment and his peer who instead brings his complaints through the designated channels, such as the prison's
grievance procedure, where feasible. Cf. Rodriguez, 66 F.3d at 478. For that reason, Plaintiff's comments fall on the wrong side
of the line. Indeed, Plaintiff's fall 2013 attempt to “address[ ] th[e] issue” of Conklin's authority to restrict television use at 10
pm should the smell of cigarette smoke continue unabated, (see Am. Compl. ¶¶ 1–4), amounted to little if anything more than an
effort to “confront [a member of] staff and discuss [an] issue[ ] with him,” Martin, 2014 WL 7157336, at *2, which, in prison,
simply does not enjoy First Amendment protection, see Garrido, 716 F. Supp. at 101 (distinguishing between “[an] exercise of
[the plaintiff's] First Amendment rights” and “a verbal confrontation”). Likewise, no greater protection is afforded to Plaintiff's
December 6, 2013 demand to know why Conklin wanted his ID coupled with the comment that Conklin was “not [Plaintiff's]
unit officer and [that] [Plaintiff] should know why [his] ID [was] being requested,” (see Am. Compl. ¶¶ 8, 12), or Plaintiff's
remark “that [Conklin] has [Plaintiff] fucked up because [Plaintiff] do[es]n[']t associate with anyone in D-A like that,” (id. ¶
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14), as each plainly falls somewhere on the spectrum between “schoolyard taunt,” Riddick, 2012 WL 2716355, at *7, and “[t]he
questioning by an inmate of a lawful order given by a corrections officer,” Rossi, 2006 WL 2811505, at *10 n.16. Accordingly,
Plaintiff's complaints to Conklin or about him to the other inmates were not protected activity, and his retaliation claim with
respect to those incidents collapses as a consequence. (See Am. Compl. ¶¶ 1–4, 12, 14, 24–26.)
Plaintiff's decision to speak with another officer and Ferdula about his run-ins with Conklin, (id. ¶¶ 16–17), and his subsequent
conversation with Heli, (id. ¶ 19), may, conceptually, be another matter; however, they also fail. As noted, a retaliation claim
requires a “causal connection” between the protected action and the adverse action. Dolan, 794 F.3d at 294. It is true that “[a]
plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the
adverse action.” Espinal, 558 F.3d at 129; see also Colon, 58 F.3d at 872 (“Temporal proximity between an inmate's lawsuit and
disciplinary action may serve as circumstantial evidence of retaliation.”); Quezada, 2015 WL 5970355, at *20 (same). However,
it is also true that, where the allegedly adverse action occurs before the allegedly protected activity, a court may appropriately
decline to find a causal connection. See Winfield v. Bishop, No. 09-CV-1055, 2012 WL 1657190, at *4 (N.D.N.Y. May 10,
2012) (“[T]he [a]mended [c]omplaint states that other adverse action preceded the protected conduct .... Given these facts and
the particular care with which courts must scrutinize retaliation claims, the [c]ourt finds that [the] [p]laintiff has failed to state a
retaliation claim against [one of the] [d]efendant[s].”); Rose v. Goldman, No. 02-CV-5370, 2009 WL 4891810, at *14 (E.D.N.Y.
Dec. 9, 2009) (rejecting the plaintiff's assertions of causal connection upon motion for summary judgment, and noting that the
defendant took the allegedly adverse action before the plaintiff engaged in any alleged protected activity), adopted by 2011
WL 1130214 (E.D.N.Y. Mar. 24, 2011); cf. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001) (noting
in employment context that, “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began
well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise”). Here, Plaintiff
alleges that Conklin's report—that is, the adverse action for his retaliation claim—preceded those conversations. (See id. ¶¶
16–21 (describing, inter alia, how, Plaintiff spoke with another officer about Conklin, and “then” Ferdula called Plaintiff to her
office where they had a conversation, after which “Ferdula ... stated to Plaintiff that he was being called to the Lt. office,” where
he “listened to the Lt. Heli state what ... Conklin wrote and filed in his incident report”).) Even if Plaintiff's complaints to this
officer and Ferdula were protected activities—which the Court does not hold at this time—there is simply no causal connection
between it and the allegedly adverse activities.
C. Plaintiff's August 4, 2015 Motion
Since submission of Defendants' Motion to Dismiss, Plaintiff also submitted an August 4, 2015 “Complaint Supplemental
'[E]mergency Ex Parte' Motion To Preserve Evidence.” In that Motion, Plaintiff requests certain video footage and sign-in logs.
(See Compl. Suppl. '[E]mergency Ex Parte' Mot. To Preserve Evidence (“Pl.'s Evid. Mot.”) 2–3 (Dkt. No. 32).) 29 Plaintiff says
that, based upon his “experience[,] personal knowledge, and belief,” BOP staff will, among other similar acts, “intentionally
suppress” the evidence Plaintiff seeks, and therefore asks the Court for a “preliminary injunction directing [Recktenwald], and
tho[ ]se under her immed[i]ate control, to preserve all foregoing referenced evidence and further, [to] take no action whatsoever
that might tend to prejudice or compromise Plaintiff's case and/or preemptively 'moot' it.” (Id. at 4–5.) Plaintiff explains that
“[b]arring judicial order, all surv[e]illance videos are routinely recorded over after a 12 month holding period which is set to
expire in this particular instance.” (Id.) 30
*28 In response to Plaintiff's Motion, Defendants submitted a declaration from Wayne D. McBride (“McBride”), a technician
in the Special Investigative Service Department at Otisville. (See Decl. of Wayne D. McBride (“McBride Decl.”) ¶ 1 (Dkt.
No. 35).) According to McBride, Otisville has 208 security cameras running nonstop, which capture video but not audio, and
footage from which is stored for a maximum of 21 days, unless staff overrides that automatic purge in order to preserve specific
recordings. (Id. ¶¶ 3–5.) McBride indicated that the requested video footage had already been deleted by the date of Plaintiff's
Motion. (See id. ¶ 8.) Additionally, McBride states that Plaintiff had previously requested some of the same video footage
in connection with his January 7, 2014 BP-9 but that it had already been deleted by that time. (Id.) 31 Moreover, judging by
McBride's declaration, he searched for all of the video footage that Plaintiff requested and for which he provided a date, only
to find that the footage had been deleted. (Compare id. ¶ 6, with Pl.'s Evid. Mot. 2–3.) McBride indicated that he had copies of
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the log books for the SHU for December 6 and 16, Housing Unit D-A for December 6, and Housing Unit D-B for December
6 and 7. (See McBride Decl. ¶ 9.) McBride also indicated that he had a copy of the SHU sign-in log for December 16, 2013
but noted that Plaintiff was in general population that day. (Id. ¶ 10.) Nevertheless, he said that he would preserve a copy a
result of Plaintiff's Motion. (See id.)
In his Motion, Plaintiff did not appear to request any sanctions; however, anticipating that he might, Defendants argued in their
Memorandum of Law that, should he do so, sanctions would be inappropriate and that Defendants had not spoliated evidence.
(See, e.g., Defs.' Mem. of Law in Response to Pl.'s Mot. To Preserve Evid. (“Defs.' Evid. Opp'n.”) 7 (Dkt. No. 34).) Moreover,
Defendants argue that Plaintiff incorrectly seeks injunctive relief when he should seek discovery and that his request is, in any
event, mooted as the relevant logs were being produced in response to the Motion. (Id. at 3–5.)
1. Request for Injunction
Plaintiff's request for an injunction is meritless. In order to obtain a preliminary injunction, a movant must ordinarily show:
“(1) a likelihood of irreparable harm in the absence of the injunction; and (2) either a likelihood of success on the merits or
sufficiently serious questions going to the merits to make them a fair ground for litigation, with a balance of hardships tipping
decidedly in the movant's favor.” Doninger v. Niehoff, 527 F.3d 41, 47 (2d Cir. 2008); see also VIDIVIXI, LLC v. Grattan, No.
15-CV-7364, 2016 WL 106241, at *3 (S.D.N.Y. Jan. 11, 2016) (same); Ins. Co. of the State of Pa. v. Lakeshore Toltest JV,
LLC, No. 15-CV-1436, 2015 WL 8488579, at *1 (S.D.N.Y. Nov. 30, 2015) (same). While a district court has wide discretion
in determining whether to grant a preliminary injunction, see Moore v. Consol. Edison Co., 409 F.3d 506, 510 (2d Cir. 2005);
NM v. Hebrew Acad. Long Beach, No. 15-CV-7004, 2016 WL 105950, at *9 (E.D.N.Y. Jan. 9, 2016), it is nevertheless an “an
extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden
of persuasion,” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997); see also Patton v. Dole, 806 F.2d 24, 28 (2d Cir. 1986)
(“[P]reliminary injunctive relief is an extraordinary remedy and should not be routinely granted.”); Safe Step Walk-In Tub Co. v.
CKH Indus., Inc., No. 05-CV-7543, 2015 WL 6504284, at *1 (S.D.N.Y. Oct. 26, 2015) (same). “The purpose of a preliminary
injunction is to preserve the status quo between the parties pending a final determination of the merits.” SymQuest Grp., Inc.
v. Canon U.S.A., Inc., No. 15-CV-4200, 2015 WL 6813599, at *4 (E.D.N.Y. Aug. 7, 2015), adopted by 2015 WL 6813494
(E.D.N.Y. Aug. 28, 2015); see also In re Baldwin-United Corp. (Single Premium Deferred Annuities Ins. Litig.), 770 F.2d 328,
338 (2d Cir. 1985) (“Preliminary injunctions under Rule 65 are designed to preserve the status quo between the parties before
the court pending a decision on the merits of the case at hand.”); In re HSBC Bank, USA, N.A., Debit Card Overdraft Fee Litig.,
99 F. Supp. 3d 288, 301 (E.D.N.Y. 2015) (same).
*29 Plaintiff has not carried his burden of persuasion. Most obviously, his preliminary injunction does not seek to preserve
the status quo because essentially all of the material that he seeks (a) was destroyed long before his motion, (b) has been turned
over to him, or (c) will be preserved. (See McBride Decl. ¶¶ 6–10.) 32 Likewise, he has failed to carry his burden of establishing
a likelihood of irreparable harm. It may well be that the “intentional[ ] sup[p]ress[ion] [of] evidence,” (see Pl.'s Evid. Mot.
at 4), as an abstract matter, would constitute irreparable harm. However, the test is not whether a plaintiff can speculate as
to an irreparable harm that may befall him, but rather if he can “show irreparable harm absent injunctive relief.” Citigroup
Glob. Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 33 (2d Cir. 2010) (emphasis added). 33 Here,
even assuming the irreparably harmful character of the alleged future conduct that Plaintiff imputes to Defendants, he has not
shown that he would suffer that harm absent injunctive relief. Cf. Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907
(2d Cir. 1990) (“Irreparable harm must be shown by the moving party to be imminent, not remote or speculative ....”). Indeed,
his submission belies any such argument by positing that “surv[e]illance videos are routinely recorded over after a 12 month
holding period” and yet seeking relief after that 12-month period expired. (See Pl.'s Evid. Mot. 5.) To upset the status quo based
on a plaintiff's self-contradictory speculations would contravene many of the principles guiding the Court's discretion when
assessing the merits of a proposed preliminary injunction.
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2. Adverse Inference
*30 As Defendants predicted, on December 22, 2015, Plaintiff requested—albeit in a submission that at least partly functioned
as a reply in support of his August 4, 2015 Motion—an adverse inference because the evidence was destroyed. (See Pro Se Pl.'s
Resp. and Sanction for Spoliation of Evid. Mot. to the Def.'s Mem. of Law in Response to Pl.'s Mot. To. Preserve Evid. (“Pl.'s
Evid. Reply”), at unnumbered 1 (Dkt. No. 48).) Plaintiff is, however, not entitled to an adverse inference at this time.
a. Standard and Applicability of New Fed. R. Civ. P. 37(e)
Spoliation refers to “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as
evidence in pending or reasonably foreseeable litigation.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (internal
quotation marks omitted) (2d Cir. 2001); see also West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) (same).
Historically, “[a] court's authority to impose sanctions in response to spoliation derives from at least two sources.” Richard
Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 288 (S.D.N.Y. 2009). As one court explained:
Where a party violates a court order—either by destroying evidence when directed to preserve it or by failing to produce
information because relevant data has been destroyed—Rule 37(b) of the Federal Rules of Civil Procedure provides that
the court may impose a range of sanctions, including dismissal or judgment by default, preclusion of evidence, imposition
of an adverse inference, or assessment of attorneys' fees and costs. Fed. R. Civ. P. 37(b); see Residential Funding Corp. v.
DeGeorge Financial Corp., 306 F.3d 99, 106–07 (2d Cir. 2002); Metropolitan Opera Association, Inc. v. Local 100, Hotel
Employees and Restaurant Employees International Union, 212 F.R.D. 178, 219–20 (S.D.N.Y. 2003). In addition, “[e]ven
in the absence of a discovery order, a court may impose sanctions on a party for misconduct in discovery under its inherent
power to manage its own affairs.” Residential Funding, 306 F.3d at 106–07 (citations omitted); accord West, 167 F.3d at 779.
Id.
Second Circuit law makes clear that, in order to obtain an adverse inference based on the destruction of evidence, the moving
party must show, first, “that the party having control over the evidence had an obligation to preserve it at the time it was
destroyed,” second, “that the records were destroyed with a culpable state of mind,” and, third, “that the destroyed evidence was
relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.”
Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (internal quotation marks omitted); see
also Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004) (same). Well-established Second Circuit law also
makes clear that mere negligence is sufficient to trigger the “culpable state of mind” requirement. See Residential Funding, 306
F.3d at 108; see also, e.g., In re: Gen. Motors LLC Ignition Switch Litig., No. 14-MD-2543, 2015 WL 9480315, at *2 (S.D.N.Y.
Dec. 29, 2015); Zubulake, 229 F.R.D. at 431; Johnson v. Waterford Hotel Grp., Inc., No. 09-CV-800, 2011 WL 87288, at *2
(D. Conn. Jan. 11, 2011).
Until December 1, 2015, Fed. R. Civ. P. 37(e) provided that, “[a]bsent exceptional circumstances, a court may not impose
sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-
faith operation of an electronic information system.” However, courts in the Second Circuit did not apply a different culpability
standard for the deletion of electronically stored information than for other evidence. See, e.g., Bravia Capital Partners Inc.
v. Fike, No. 09-CV-6375, 2015 WL 1332334, at *5 (S.D.N.Y. Mar. 25, 2015) (“Since there was no intervening act of God or
other circumstance beyond [the] [p]laintiff's control, the destruction of the emails was at a minimum negligent. Thus, [the]
[p]laintiff acted with a culpable state of mind.” (citation omitted) (citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220
(S.D.N.Y. 2003))). The Second Circuit's approach was consistent with the logic that “[a] court's authority to impose sanctions
in response to spoliation derives from at least two sources,” first, when a party has violated a court order, Fed. R. Civ. P. 34(b),
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and, second, the court's “inherent power to manage its own affairs,” Richard Green, 262 F.R.D. at 288 (quoting Residential
Funding, 306 F.3d at 106–07).
*31 On December 1, 2015, however, the new Fed. R. Civ. P. 37(e) went into effect. Pursuant to that provision:
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a
party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary
to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation
may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e). The Advisory Committee has explained that subdivision 37(e)(2) of Rule 37 “rejects cases such as
Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), that authorize the giving of adverse-
inference instructions on a finding of negligence or gross negligence.” Fed. R. Civ. P. 37(e) advisory committee's note to
2015 amendment. Therefore, Plaintiff stands on shakier legal footing than previous litigants seeking adverse inferences if the
December 2015 amendments apply to his Motion. 34
Under Fed. R. Civ. P. 86(a), any amendments to the Federal Rules of Civil Procedure “take effect at the time specified by the
Supreme Court, subject to 28 U.S.C. § 2074,” and “govern ... proceedings after that date in an action then pending unless ...
the Supreme Court specifies otherwise; or ... the court determines that applying them in a particular action would be infeasible
or work an injustice.” 35 In transmitting the proposed changes to Congress, Chief Justice Roberts specified that the 2015
amendments would “govern in all proceedings in civil cases” commenced after December 1, 2015, and, “insofar as just and
practicable, all proceedings [ ] pending” on that date. See Order re: Amendments to Federal Rules of Civil Procedure (April 29,
2015), available at http://www.supremecourt.gov/orders/courtorders/frcv15%28update%29_1823.pdf.
*32 Here, the Court concludes that it would fall short of justice and practicability to apply the new Rule 37(e) to Plaintiff's
Motion. As a general matter, the Court thinks that it makes sense to apply the old rules to motions briefed before the new rules
came into effect. See Trowery v. O'Shea, No. 12-CV-6473, 2015 WL 9587608, at *5 n.11 (D.N.J. Dec. 30, 2015) (“Since the
parties briefed the motions and conducted oral argument under the prior rule, the [c]ourt finds that it is not just and practicable to
apply the amended rules in connection with these motions.”). Here, Plaintiff filed an “emergency” motion before discovery even
began in his case seeking material that he could have requested in discovery. Additionally, he did not actually request sanctions
until his December 22, 2015 submission to this Court, over four months after Defendants objected to his original Motion and
after the new Rule 37(e) went into effect. (See generally Defs.' Evid. Opp'n; Pl.'s Evid. Reply.) The Court is reluctant to reward
Plaintiff's capriciously aggressive tactics by adjudicating his request under a more permissive standard. Nevertheless, because
the Court takes seriously its obligation to afford special solicitude to pro se plaintiffs and because the Court does not think that
justice would be served by inviting further motion practice surrounding the applicability of Rule 37(e), should Plaintiff initiate
it, the Court applies the familiar law of Residential Funding and its progeny here.
b. December 2013 Footage
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The first requirement for a finding of spoliation—that “the party having control over the evidence had an obligation to preserve
it at the time it was destroyed,” see Residential Funding, 306 F.3d at 107—is sufficient to deny Plaintiff's Motion with respect
to the December footage. Under well-established Second Circuit law, this obligation “arises when the party has notice that the
evidence is relevant to litigation,” which is “most commonly when suit has already been filed, providing the party responsible
for the destruction with express notice, but also on occasion in other circumstances, as for example when a party should have
known that the evidence may be relevant to future litigation.” Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998); see
also Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423, 436 (2d Cir. 2001); Stinson v. City of N.Y., No. 10-CV-4228, 2016
WL 54684, at *4 (S.D.N.Y. Jan. 5, 2016); Zubulake, 220 F.R.D. at 216.
As noted, Plaintiff seeks footage from December 6, 2013, December 7, 2013, December 16, 2013, and various points in March
2014. (See Pl.'s Evid. Mot. 2–3.) With respect to the first two, because the tapes would have been erased by December 28, 2013
at the latest absent staff override, (see McBride Decl. ¶¶ 4–5), Plaintiff would have to show that Defendants had “notice that
the [tapes] were relevant to litigation” before that date, Kronisch, 150 F.3d at 126. Because Plaintiff's BP-8 was received on
December 30, 2013, at least two days after the purge, (see Pl.'s Opp'n Ex. B. (BP-8 Form)), Plaintiff must provide some other
basis to think Defendants were on notice before he filed his BP-8. In his reply, Plaintiff vehemently argues that he personally
handed a “cop-out” complaint to Susney on December 9, 2013. (See Pl.'s Evid. Reply at 1, 2, 4–6, 11.) 36 According to Plaintiff,
his cop-out “request[ed] ... investigation of that [f]alse and [f]raudulent incident report made and submitted by ... Conklin.” (Id.
at 2.) Likewise, Plaintiff argues that he told Defendants to preserve the videotapes. For instance, he says, when speaking with
Heli, he “requested the viewing of these security cameras to pro[ ]ve his innocence and that a false and fraudulent incident
report was filed.” (Id. at 5–6.) Additionally, he suggests that a number of his submissions requested the videotape footage be
preserved. (See id. at 6 (“Susney re[ei]ved the first filing on Dec. 9, 2013 in the [f]orm of a cop-out in the same fashion as the
BP-8, 9, 10 and BP-11 which in all respect is part of the Otisville's legal Department on Dec. 9, 2013 making request received
timely for any and all videotape[ ] footage from Dec. 6, 2013 to not be and prevently [sic] the routinely [sic] deletion of these
security cameras #78, 75, 300, 83 and 77.”).)
*33 This is insufficient. At the outset, it is worth noting that, unlike in the context of deciding a Motion to Dismiss, the Court
is under no obligation to accept as true Plaintiff's submissions. To the contrary, “[a] party seeking spoliation sanctions has the
burden of establishing the elements of a spoliation claim by a preponderance of the evidence.” Dilworth v. Goldberg, 3 F. Supp.
3d 198, 200 (S.D.N.Y. 2014) (citing Byrnie, 243 F.3d at 108); see also Gutierrez-Bonilla v. Target Corp., No. 08-CV-3985,
2009 WL 5062116, at *3 (E.D.N.Y. Dec. 16, 2009) (“The moving party bears the burden of proving that the alleged spoliator
had an obligation to preserve evidence, acted culpably in destroying it, and that the evidence would have been relevant to the
aggrieved party's case.” (internal quotation marks omitted)). First, even assuming that Plaintiff did provide Susney with a cop-
out requesting the videotapes, it is not at all clear that would be sufficient to convey that the videotape may be relevant to
future litigation. The cop-out may have made clear that the BOP should have been worried about litigation; on the other hand,
perhaps the cop-out's tone, informality, and other characteristics would not forecast litigation to a reasonable observer. The
missing details here matter, because imposing spoliation sanctions is serious business, and one which resists broad categorical
pronouncements, like that which would be necessary to find notice based on a rumored cop-out per se sufficient to establish
notice. Cf. Fujitsu, 247 F.3d at 436 (“The determination of an appropriate sanction for spoliation, if any, is confined to the
sound discretion of the trial judge, and is assessed on a case-by-case basis.”). Second and relatedly, even if Plaintiff made his
desire that the footage be preserved unequivocally clear, it not obvious that Defendants should have known the footage “may
be relevant to future litigation.” Kronisch, 150 F.3d at 126. To the contrary, Plaintiff may have wanted the footage not to go on
the offense as a plaintiff but rather to clear his name—albeit after his SHU punishment—in connection with Conklin's incident
report. Third, the fact that Plaintiff purportedly requested the footage before filing his BP-8 may, if anything, make a reasonable
observer less inclined to anticipate litigation. As courts have recognized, “[t]he first step [in the inmate grievance program] is
to submit a BP-8, or informal grievance, to prison staff.” Baez v. Kahanowicz, 469 F. Supp. 2d 171, 178 (S.D.N.Y. 2007) (citing
28 C.F.R. Part 542 (“Administrative Remedy”)), aff'd, 278 F. App'x 27 (2d Cir. 2008). To the extent Plaintiff declined to take
that “first step” and submit a BP-8, opting instead to submit a cop-out first, a reasonable observer could conclude that Plaintiff
was expressly declining to embark down the road to litigation.
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To this, Plaintiff might well respond that his cop-out was, for all practical purposes, the same as a BP-8 and was similarly
intended to initiate the litigation process. Such a response may well be sound, and the Court is certainly not prepared to
conclude on the briefing in this case that a cop-out is per se a distinct creature from the BP-8. See 28 C.F.R. §§ 542.13–542.14
(indicating that “before an inmate submits a Request for Administrative Remedy,” “an inmate shall first present an issue of
concern informally to staff, and staff shall attempt to informally resolve the issue” and later describing a BP-9 as “a formal
written Administrative Remedy Request”); see also Bailey v. Fortier, No. 09-CV-742, 2012 WL 6935254, at *2 (N.D.N.Y. Oct.
4, 2012) (“This informal, initial procedure [described in 28 C.F.R. § 542.13(a)] typically begins with the filing of a 'cop-out,'
which can be submitted either on a BP-8 form available to inmates through several sources, including their assigned counselors,
or on paper of any other description.”), adopted by 2013 WL 310306 (N.D.N.Y. Jan. 25, 2013); Bastien, 2015 WL 5008837, at
*5 (“The law is clear that the 'Inmate Request to Staff' forms submitted by [the] plaintiff, commonly known as 'cop out' forms,
are informal requests to prison staff to resolve disputes, and are only the first step in the clearly established multi-level system
within the Bureau of Prisons Administrative Remedy Program.”); Families Against Mandatory Minimums, How To Help your
Loved Ones in Federal Prison, available at http://famm.org/wp-content/uploads/2013/08/FS-Help-a-Federal-Prisoner2.23.11-
NW.pdf (“The prisoner begins the administrative remedy process by filling out a 'cop-out' (also known as a BP-8 form) and
giving it to staff.”). However, the problem with embarking down this road is that it would seem inconsistent with the many
documents and statements in this case that Plaintiff submitted his BP-8 on December 28, 2013. (See, e.g., Am. Compl. ¶ 29;
Pl.'s Opp'n ¶¶ 2–3; Pl.'s Opp'n Ex. B. (BP-8 Form); Pl.'s Opp'n Ex. C (BP-8 Response).) It may well be plausible that Plaintiff
did submit a cop-out on December 9 that reasonably forecast his litigious designs and then later decided to submit a second
informal grievance, rather than proceed to the next stage of the administrative remedy process. But that is not the question.
Rather, the issue is whether Plaintiff has met his burden of showing that Defendants were under a duty to preserve the evidence
at the time of its erasure. See Gutierrez-Bonilla, 2009 WL 5062116, at *3; Zubulake, 220 F.R.D. at 216. Here, there are just too
many question marks hanging over the contents of Plaintiff's cop-out.
*34 Likewise, Plaintiff has not met his burden with respect to the December 16, 2013 video. (See Pl.'s Evid. Mot. 2–3.)
December 16 simply is not a meaningful date in this litigation. If the Court reviewing Plaintiff's Motion for spoliation sanctions
cannot discern what about the December 16 footage is relevant to this litigation, it doubts very much that Defendants “should
have known that the evidence may be relevant to future litigation” before it was destroyed. Kronisch, 150 F.3d at 126. 37
c. March Footage
The Court is similarly not prepared to conclude that Defendants had notice of an obligation to preserve evidence from March
2014; however, the question is closer. Because Plaintiff's claims related to that footage may be barred by the PLRA exhaustion
requirement, however, the Court declines to determine whether Defendants have indeed let documents which should have been
preserved be destroyed.
To begin, Plaintiff submitted a large number of written complaints to prison authorities in early March 2014. (See Pl.'s Opp'n Ex.
G (Letter from Pl. to Warden (Mar. 4, 2014)) (addressing Plaintiff's desire for signed copy of his February 25, 2014 affidavit,
need for hand braces, lack of heat, and generalized allegations of cruel and unusual punishment); Pl.'s Opp'n Ex. H (Letter from
Pl. to Warden Recktenwald (Mar. 12, 2014)) (complaining about inability to use phone in SHU); Pl.'s Opp'n Ex. I (Letter from
Pl. to SHU lieutenant (Mar. 6, 2014)) (asking for copy of his affidavit); Pl.'s Opp'n Ex. J (Letter from Pl. (March 9, 2014))
(asking to speak with Susney); Pl.'s Opp'n Ex. K (Letter from Pl. to SHU lieutenant (Mar. 6, 2014)) (saying that he was in
the SHU for a restraining order against Conklin but that Conklin is feeding him); Pl.'s Opp'n Ex. L (Letter from Pl. to SHU
lieutenant (Mar. 7, 2014)) (saying that he “need[ed] to make more than one phone call”); Pl.'s Opp'n Ex. M (Letter from Pl.
to Warden (Mar. 5, 2014)) (complaining that he was being prevented from using the phone, was “not allowed to w[ ]atch any
T.V.,” and was “subjected to ... cold confinement”); Pl.'s Opp'n Ex. W (Letter from Plaintiff to Demeo (Mar. 11, 2014)); Pl.'s
Opp'n Ex. X (Letter from Pl. to Warden Recktenwald (Mar. 12, 2014)).)
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With the possible exception of Plaintiff's March 6, 2014 letter (to be discussed below), these letters do not indicate that
Defendants “should have known that the evidence may be relevant to future litigation.” Kronisch, 150 F.3d at 126. Indeed, to
hold otherwise would essentially lay down a rule that prison officials should anticipate litigation whenever an inmate makes
a complaint about any condition of his confinement. Given that “an adverse inference instruction is an extreme sanction and
should not be imposed lightly,” Curcio v. Roosevelt Union Free Sch. Dist., 283 F.R.D. 102, 107 (E.D.N.Y. 2012) (internal
quotation marks omitted), the Court does not think the bar to finding its predicate obligation to preserve evidence should be so
low, compare Grant v. Salius, No. 09-CV-21, 2011 WL 5826041, at *1, *3 (D. Conn. Nov. 18, 2011) (finding the defendants
had no duty to preserve video footage despite the plaintiff's submitted administrative remedies where the loss was attributable
to third parties), with Barnes v. Alves, 58 F. Supp. 3d 296, 300 (W.D.N.Y. 2014) (considering inmate's spoliation motion where
the inmate requested preservation of the tape at issue in an earlier grievance).
*35 However, Plaintiff's March 6, 2014 letter may be different. That letter, addressed to “SHU Lt.” and apparently written on
“March 6, 2014 [at] 6:am [sic],” reads in its entirety:
I am in the SHU right now for a restraining order agains[t] c/o P. Conklin and “for my protection,” as
SIS claim. And now you have the same officer at my door feeding me!!! [T]his is in clear violation
of my restraining order and this is being recorded for future litigation. SHU #209 Charles T. McIntosh
Breakfast # 08770-089.
(Pl.'s Opp'n Ex. K (Letter from Pl. to SHU lieutenant (Mar. 6, 2014))).
Although the Court is not prepared to say that Plaintiff's allusion to “future litigation” is per se enough to establish notice, cf.
Siggers v. Campbell, No. 07-CV-12495, 2014 WL 4978648, at *3 (E.D. Mich. Mar. 25, 2014) (declining to find an obligation
to preserve evidence despite “some rumblings” about filing a lawsuit, because the plaintiff had not established that she saw the
document), aff'd 2014 WL 4978655 (E.D. Mich. Oct. 6, 2014), this letter is obviously a closer call than the others. However, as
noted earlier, it is not enough to conclude that Defendants had a duty to preserve the video footage; rather, “to obtain an adverse
inference instruction, a party must establish that the unavailable evidence is 'relevant' to its claims or defenses.” Residential
Funding, 306 F.3d at 108; see also Zubulake, 220 F.R.D. at 218 (same). In this sense, relevance demands something more than
that it be sufficiently probative under Fed. R. Evid. 401; “[r]ather, the party seeking an adverse inference must adduce sufficient
evidence from which a reasonable trier of fact could infer that the destroyed or unavailable evidence would have been of the
nature alleged by the party affected by its destruction.” Residential Funding, 306 F.3d at 109 (alterations and internal quotation
marks omitted); Stinson, 2016 WL 54684, at *7. Nevertheless, “[c]ourts must take care not to hold the prejudiced party to too
strict a standard of proof regarding the likely contents of the destroyed or unavailable evidence,” lest they “subvert the purposes
of the adverse inference, and ... allow parties who have destroyed evidence to profit from that destruction.” Residential Funding,
306 F.3d at 109 (alterations and internal quotation marks omitted). Consequently, “a court's role in evaluating the 'relevance'
factor in the adverse inference analysis is limited to insuring that the party seeking the inference had adduced enough evidence of
the contents of the missing materials such that a reasonable jury could find in its favor.” Id. at 109 n.4 (emphasis in original). 38
*36 The relevance of the March footage is very much in doubt. Indeed, as discussed above, Defendants have sought dismissal
of Plaintiff's claims for failure to exhaust in accordance with the PLRA other than those relating to the December 6, 2013 dispute
with Conklin. (See Defs.' Mem. 12–16.) And, as also discussed, Defendants may well be entitled to summary judgment on
those claims if Plaintiff failed to exhaust his administrative remedies. If that should come to pass, it is not clear to this Court
how Plaintiff “ha[s] adduced enough evidence of the contents of [that video tape] such that a reasonable jury could find in [his]
favor” on the claims related to the events of December 6, 2013. Residential Funding, 306 F.3d at 109 n.4 (emphasis omitted).
Accordingly, before delving into the thorny legal questions of whether Defendants had an obligation to preserve evidence and
whether Plaintiff can show negligence, the Court declines to rule on Plaintiff's spoliation Motion with respect to the March
videotape request until after it has decided the PLRA exhaustion issue.
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Finally, and for sake of completeness, it is worth making explicit that Defendants need not have anticipated litigation of the
March 2014 events on the basis of Plaintiff's late 2013 BP-8 and related filings. (Pl.'s Opp'n Ex. B. (BP-8 Form).) Although
Plaintiff's Amended Complaint offers a single, comprehensive lament detailing his various run-ins with Conklin and stays in
the SHU from December 2013 through early 2014, the events are conceptually distinct, and there is no reason to conclude
Defendants were on notice of potential future litigation over the events of March 2014 through this earlier set of filings.
D. Request for Counsel
Lastly, appended on to the end of Plaintiff's Amended Complaint is a request for the appointment of pro bono counsel. (See
Am. Compl. ¶¶ 113–15.) Although there is no constitutional right to counsel in civil cases, courts have the authority to appoint
counsel for indigent plaintiffs. See 28 U.S.C. § 1915(e)(1). Nevertheless, “[b]road discretion lies with the district judge in
deciding whether to appoint counsel pursuant to this provision.” Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986).
When analyzing whether appointment of counsel is appropriate, the Court undertakes a two-step inquiry. See Ferrelli v. River
Manor Health Care Ctr., 323 F.3d 196, 203–04 (2d Cir. 2003). First, the Court “should [ ] determine whether the [movant]'s
position seems likely to be of substance.” Id. at 203 (quoting Hodge, 802 F.2d at 61); see also Johnston v. Maha, 606 F.3d 39,
41 (2d Cir. 2010) (“This [c]ourt considers motions for appointment of counsel by asking first whether the claimant has met a
threshold showing of some likelihood of merit.” (internal quotation marks omitted)). The claim must not be so “highly dubious”
that the plaintiff appears to have no chance of success. Hodge, 802 F.2d at 60 (internal quotation marks omitted). In making
this determination, the Court construes pleadings drafted by pro se litigants liberally and interprets them to raise the strongest
arguments that they suggest. See Triestman, 470 F.3d at 474–75.
Second, if the threshold requirement is met, the Court will then proceed to consider other prudential factors such as the movant's
ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-
examination will be the major proof presented [to the fact finder], [the movant]'s ability to present the
case, the complexity of the legal issues[,] and any special reason ... why appointment of counsel would
be more likely to lead to a just determination.
Ferelli, 323 F.3d at 203–04 (internal quotation marks omitted); see also Garcia v. USICE (Dep't of Homeland Sec.), 669 F.3d
91, 98–99 (2d Cir. 2011) (listing Hodge factors).
Here, Plaintiff requests counsel because, he says, “when a colorable claim of constitutional violation is presented, the trial
court is under a mandatory duty to appoint counsel.” (Am. Compl. ¶ 113.) Further, Plaintiff argues that his injuries are “the
consequences of a [sic] numerous and continuing injuries, and that made of proceeding is much to be preferred to piece mail [sic]
litigation despite the possible loss in accuracy.” (Id. ¶ 114.) Plaintiff also recites several lines concerning the liberal construction
of pro se complaints as well as the pre-Twombly 12(b)(6) standard. (Id.)
*37 Even assuming that the threshold requirement has been met, the various prudential considerations militate against the
appointment of counsel here. First, Plaintiff does not indicate why he would need counsel to help investigate the facts of the
case. While a pro se litigant will often “be found unable to investigate the facts of his or her claim where, for example, he
or she will be incarcerated for the duration of the case,” Walters v. N.Y.C. Health Hosp. Corp., No. 02-CV-751, 2002 WL
31681600, at *2 (S.D.N.Y. Nov. 25, 2002) (citing Hendricks v. Coughlin, 114 F.3d 390, 394 (2d Cir. 1997)), that concern is
less compelling here because Plaintiff was witness to most, if not all, of the events and facts giving rise to his claims, see
Goodson v. Sedlack, No. 99-CV-10419, 2000 WL 278087, at *2 (S.D.N.Y. Mar. 14, 2000) (declining to appoint counsel where
“[the] plaintiff ha[d] an intimate knowledge of the facts and circumstances which [were] the most relevant to [the] action[,]”
though the “[p]laintiff's ability to investigate the case, due to his incarceration, is limited”). Moreover, Plaintiff's submissions
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to this Court suggest that Plaintiff will be able to adequately investigate the facts of his case. In addition to filing a motion
—albeit a procedurally inappropriate one—successfully identifying discovery that Plaintiff felt was germane to his claims,
Plaintiff attached a great many relevant documents to his Opposition to Defendants' Motion to Dismiss, suggesting that he
should be able to investigate the facts of his case. See Bonilla v. Potter, No. 04-CV-3205, 2006 WL 995195, at *2 (S.D.N.Y.
Apr. 17, 2006) (noting that “many of the documents attached to [the plaintiff's] complaint will undoubtedly be used by him
as exhibits at the trial of the instant action to support the factual allegations he has made,” and that he “[t]herefore ... will not
need the assistance of counsel to undertake any investigation to uncover these documents or relevant facts”). Additionally,
although Plaintiff's claims are complicated by their volume and extent of attendant motion practice, the underlying legal issues
are not so complex as to demand the appointment of counsel. See Davis v. Barrett, No. 02-CV-545, 2010 WL 1407291, at *1
(W.D.N.Y. Mar. 31, 2010) (denying request for pro bono counsel in connection with claim that the plaintiff was denied due
process in course of administrative segregation hearing where “the facts in th[e] matter [were] not complex and [the] plaintiff
ha[d] demonstrated his capacity to articulate to the [c]ourt both the facts and legal theories supporting his claim”); Armstrong
v. N.Y.C. Dep't of Corr., No. 97-CV-7388, 1999 WL 61841, at *1 (S.D.N.Y. Feb. 10, 1999) (finding Eighth Amendment claim
“not a complex issue”); Maldonado v. Candidus, No. 97-CV-4794, 1998 WL 690817, at *1 (S.D.N.Y. Sept. 30, 1998) (“[The
plaintiff's] claims [including a claim of retaliatory action] do not appear so overwhelmingly complex that he cannot be afforded
a just determination without legal representation”). Lastly, the fact that Plaintiff has not explained what attempts, if any, he has
made to find an attorney on his own cuts against the appropriateness of the Court appointing pro bono counsel. See Wise v.
Superintendent of Attica Corr. Facility, No. 08-CV-6312, 2009 WL 3165626, at *1 (W.D.N.Y. Sept. 25, 2009) (“[The plaintiff]
does not explain what attempts, if any, he has made to retain an attorney, or have one represent him pro bono. He merely states
that he is confined at Attica Correctional Facility. This fact alone does not preclude him from pursuing his own efforts, which
he must do initially, to obtain representation for himself.”). It is true that “conflicting evidence implicating the need for cross-
examination” may be “the major proof presented to the fact finder,” Hodge, 802 F.2d at 61–62, in light of the dispute over the
accuracy of Conklin's incident report. However, as the foregoing analysis makes clear, this is just one of many factors, and, on
balance, the Court thinks the appointment of counsel is not warranted in this matter at this time. Should circumstances change,
Plaintiff may reapply for appointment of pro bono counsel.
III. Conclusion
For the foregoing reasons, the Court grants Defendants' Motion To Dismiss in part and denies in part Plaintiff's August 4, 2015
Motion. (See Dkt. Nos. 23, 32.) More specifically, the Court permits the Parties to engage in limited discovery on the issue of
Plaintiff's PLRA exhaustion as described herein, and, with respect to the concededly exhausted claims:
• Dismisses Plaintiff's claims against Whinnery, Dachisen, Diehl, Hickman, and Susney for lack of personal involvement;
• Dismisses Plaintiffs claims against Recktenwald for lack of personal involvement, except insofar as they relate to her denial
of Plaintiffs false incident report grievance;
• Dismisses Plaintiffs remaining claims against Recktenwald, as she is entitled to qualified immunity;
• Dismisses all claims brought against individual Defendants in their official capacities, as they are barred by the doctrine
of sovereign immunity;
• Dismisses all claims brought pursuant to the FTCA;
• Dismisses Plaintiffs§ 1986 claims;
• Dismisses Plaintiffs Sixth Amendment right-to-counsel claims;
• Dismisses Plaintiffs Fifth Amendment access-to-the-court claims;
• Dismisses Plaintiffs retaliation claim; and
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• Denies Plaintiffs August 4 Motion in its entirety, except that the Court declines to rule on the question of sanctions relating
to Defendants ' preservation of the March 2014 footage.
Within 30 days of this Opinion, Plaintiff may file a Second Amended Complaint.
The Clerk of the Court is respectfully requested to terminate the pending Motions. (See Dkt. No. 23, 32.)
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2016 WL 1274585
Footnotes
1 Occasional phrases and sentences in Plaintiff's Amended Complaint are written in all capital letters. Here and elsewhere,
when quoting such phrases, this Opinion reverts to conventional capitalization for ease of readability.
2 The Court surmises that Plaintiff means to say that Munios told Plaintiff that, irrespective of whether his earlier described
statement was made directly or indirectly to Conklin, Conklin still heard it and interpreted it as he did.
3 The Amended Complaint is silent as to whether the lieutenant then handed these clothes to Plaintiff.
4 A BP-8 is the form used to indicate that an inmate has presented his issue formally to staff. See Aguiar v. Laird, No.
07-CV-1081, 2008 WL 795303, at *1 n.2 (E.D.N.Y. Mar. 24, 2008) (“Under 28 C.F.R. § 542.13(a), an inmate must
present an issue for informal resolution with a BP-8 form before he can make a formal request for administrative remedy
through BP-9.”); United States v. Lovaglio, No. 05-CR-194, 2007 WL 2752369, at *1 (E.D.N.Y. Sept. 20, 2007) (“To
appropriately exhaust administrative remedies, an inmate must ... [f]irst ... initiate informal resolution by filing a 'BP-8'
form.” (citing, inter alia, 28 C.F.R. § 542.13(a))).
5 Here and elsewhere in this recitation of the facts of the case, the Court periodically draws on documents besides the
Plaintiff's Amended Complaint. “Although material outside a complaint generally is not to be taken into consideration
on a motion to dismiss, the policy reasons favoring liberal construction of pro se complaints permit a court to consider
allegations of a pro se plaintiff in opposition papers on a motion where ... consistent with the complaint.” Rodriguez v.
McGinnis, 1 F. Supp. 2d 244, 246–47 (S.D.N.Y. 1998); see also Anderson v. Buie, No. 12-CV-6039, 2015 WL 9460146,
at *13 (W.D.N.Y. Dec. 23, 2015) (same); Elliott v. Nestle Waters N. Am. Inc., No. 13-CV-6331, 2014 WL 1795297, at *7
(S.D.N.Y. May 6, 2014) (considering, among other things, exhibits attached to the plaintiff's opposition brief in part “in
light of the policy permitting courts to consider facts alleged for the first time in a pro se plaintiff's opposition to a motion
to dismiss” (italics omitted)). On the other side of the coin, the Court declines to consider reiterations of the factual
allegations submitted, for instance, in Plaintiff's late December 2015 submission entitled “Pro Se Plaintiff's Response
And Sanction for Spoliation of Evidence Motion to the Defendant[s'] Memorandum of Law in Response to Plaintiff's
Motion to Preserve Evidence.” (See Dkt. No. 48.) Daunting though it no doubt is for pro se plaintiffs to prosecute their
claims in court without counsel, the practical and accommodating rationales underlying the policy of liberally construing
their submissions do not also militate in favor of the courts attempting to draw a line of best fit through all of a plaintiff's
recitations of the facts of the case, wherever they may be found in the record.
6 This appears to be a reference to the Discipline Hearing Officer hearing described at 28 C.F.R. § 541.8
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7 Plaintiff actually says “SIS” rather than “Special Investigative Services,” but it appears that is the component to which
he refers. See Anderson v. Marr, No. 10-CV-818, 2011 WL 3423694, at *1 n.4 (S.D.N.Y. July 18, 2011), adopted by
2011 WL 3585968 (S.D.N.Y. Aug. 10, 2011).
8 Plaintiff here refers to “Lieutenant Mr. D. Hickerman,” but it appears that Plaintiff intended to refer to Hickman.
9 As an exhibit to his Opposition to Defendants' Motion, Plaintiff also attaches a response apparently from Hickman,
dated February 7, 2014. (See Pl.'s Opp'n Ex. D (BP-9 Form and Response) at unnumbered 3.) It provides somewhat
more detail than Recktenwald's response, but it does not reach a contrary conclusion. (See id.)
10 The court denied Plaintiff's motion, noting that Plaintiff was “expected and required to exhaust administrative remedies”
and that “th[e] court ha[d] no jurisdiction over the bureau of prisons as it applies in this case.” (Pl.'s Opp'n Ex. R (E.D.
Wis. Order); see also Pl.'s Opp'n ¶ 18.)
11 Taking this allegation by itself, it would be unclear to the Court whether Plaintiff meant to say that he was thereafter
placed in the SHU for filing his March 2014 complaint, or that he stated in his March 2014 complaint that he had been
put in the SHU for making earlier complaints. However, the attachments to Plaintiff's Opposition to Defendants' Motion
to Dismiss make clear that Plaintiff spent additional time in this SHU in March 2014. (See Pl.'s Opp'n Ex. H (Letter
from Pl. to Warden Recktenwald (Mar. 12, 2014)) (“I'm being held in this SHU against all that is right ....”).)
12 Here and elsewhere, there are slight discrepancies between how Plaintiff describes the content of his letters in his
Amended Complaint and those letters as they appear when attached as exhibits to his Opposition to Defendants' Motion.
(Compare, e.g., Am. Compl. ¶ 53 with Pl.'s Opp'n Ex. G (Letter from Pl. to Warden (Mar. 4, 2014)).) Those differences
are, however, inconsequential and will not be further noted going forward. It should be noted, however, that a tie goes
to the documents.
13 The Supreme Court has recently held that the FTCA's time limits for filing an administrative claim and bringing suit
in federal court are not jurisdictional. United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1629 (2015). However, “the
Court's opinion did not address—and therefore did not disturb—the well-established principle that ... exhaustion of
administrative remedies[ ] [is] jurisdictional in nature, and [is] not subject to waiver ....” Mohamed v. F.B.I., No. 14-
CV-7615, 2015 WL 6437369, at *6 (S.D.N.Y. Oct. 21, 2015); see also Barnhill v. Terrell, 616 F. App'x 23, 25 &
n.1 (2d Cir. 2015) (concluding that “[Plaintiff] failed to exhaust his administrative remedies, and that it accordingly
lacked jurisdiction to hear his FTCA claims” but noting that in Kwai Fun Wong, “the U.S. Supreme Court ruled that
time limitations under the FTCA are nonjurisdictional and subject to equitable tolling”); cf. Ortega v. Colvin, No. 13-
CV-3487, 2015 WL 6143591, at *4 (E.D.N.Y. Oct. 19, 2015) (noting the holding in Kwai Fun Wong but also indicating
that “[t]he administrative exhaustion requirement [of the FTCA] derives from a cardinal principle of law—that the United
States, as sovereign, is immune from suits in the courts of law” and that “[s]overeign immunity creates a jurisdictional
bar to suit” (internal quotation marks omitted)).
14 Nor would it be an answer (to the extent that it is even true) that Plaintiff exhausted his remedies under the Prison
Litigation Reform Act (“PLRA”), to be discussed shortly. To be sure, in his Opposition, Plaintiff periodically refers to the
“Federal Tort Claims Act,” when context suggests he intended to refer to the PLRA. (See, e.g., Pl.'s Opp'n 15.) However,
“[t]he exhaustion procedures under the two statutes differ, and the fulfillment of one does not constitute satisfaction of
the other.” Owusu v. Fed. Bureau of Prisons, No. 02-CV-915, 2003 WL 68031, at *2 (S.D.N.Y. Jan. 7, 2003) (footnote
omitted); see also Ward v. Ives, No. 11-CV-1657, 2014 WL 4417764, at *6 (E.D. Cal. Sept. 4, 2014) (“Prison grievances
are not sufficient to exhaust administrative remedies under the FTCA because exhaustion requirements for administrative
remedies through the BOP's inmate grievance system differ from the exhaustion requirements for filing a claim under
the FTCA.” (alterations and internal quotation marks omitted)), adopted by 2014 WL 4929454 (E.D. Cal. Sept. 30,
2014); Robinson v. United States, No. 13-CV-1106, 2014 WL 2940454, at *6 (M.D. Pa. June 30, 2014) (“[A]n inmate
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may not rely upon the submission of prison grievances to satisfy his separate and independent exhaustion requirement
under the FTCA.”)
15 As when non-exhaustion is not clear on the face of a complaint, dismissal is similarly inappropriate when one of the
Hemphill exceptions may well be applicable. See Lopez v. Cipolini, No. 14-CV-2441, 2015 WL 5732076, at *4 (S.D.N.Y.
Sept. 30, 2015) (“[A] motion to dismiss pursuant to Rule 12(b)(6) for failure to exhaust should be granted only if
nonexhaustion is clear from the face of the complaint, and none of the exceptions outlined by the Second Circuit are
germane.” (internal quotation marks omitted)).
16 Colon involved a § 1983 claim, not a Bivens claim. See Colon, 58 F.3d at 868. Nevertheless, case law both before and after
Iqbal makes clear that the personal involvement inquiry is the same under both. See, e.g., Griffin v. Doe, 71 F. Supp. 3d
306, 318 (N.D.N.Y. 2014) (“Personal involvement is a prerequisite to the assessment of damages in a [§] 1983 case, and
respondeat superior is an inappropriate theory of liability. The same law is applicable to Bivens actions.” (citations and
italics omitted)); Alcantara v. City of N.Y., 646 F. Supp. 2d 449, 456–57 (S.D.N.Y. 2009) (“Federal courts have typically
incorporated § 1983 law into Bivens actions. Both Bivens actions and § 1983 suits require personal involvement of
the defendants in the alleged constitutional deprivation.” (alterations, citations, and internal quotation marks omitted));
Marsden v. Fed. Bureau of Prisons, 856 F. Supp. 832, 835 (S.D.N.Y. 1994) (“Under Bivens, as under § 1983, a defendant's
'personal involvement' in an alleged deprivation of constitutional rights is a prerequisite to an award of damages.”).
17 Although, as acknowledged, courts have questioned the extent of Iqbal's holding on the Colon factors, they have done
so in the context of considering Iqbal's proscription of respondeat superior liability in § 1983 and Bivens suits. See,
e.g., Reynolds v. Barrett, 685 F.3d 193, 206 n.14 (2d Cir. 2012) (noting that “Iqbal has, of course, engendered conflict
within our Circuit about the continuing vitality of the supervisory liability test set forth in Colon” after describing Iqbal's
holding as to vicarious liability (citing Iqbal, 556 U.S. at 676–77)). There is no question that Iqbal's other holdings—
for instance, its clarification that a court need not accept legal conclusions as true when faced with a motion to dismiss,
see Iqbal, 556 U.S. at 678—applies with no less force in a Colon analysis than in any other area of law.
18 It merits mentioning that this proposition is not entirely obvious. In Grullon, the Second Circuit considered the district
court's dismissal of a pro se inmate's claim against a prison warden for lack of personal involvement. See 720 F.3d at
138–39. While the case was still at the district court level, the plaintiff submitted a copy of a letter he had allegedly sent
to the warden and asked that he “be allowed to amend his complaint” if the court found his allegations against the warden
insufficient. Id. at 139–40 (internal quotation marks omitted). The district court chose to disregard the letter, noting that
the plaintiff did not allege that the warden actually received the letter or took any action in response to the letter. Id.
at 140. Reversing, the Second Circuit held that, “[a]t the pleading stage, even if [the plaintiff] had no knowledge or
information as to what became of his [l]etter after he sent it,” assuming he alleged he sent it to an appropriate address
by appropriate means, “he would be entitled to have the court draw the reasonable inference ... that the [w]arden in fact
received the [l]etter, read it, and thereby became aware of the alleged conditions” complained of in that letter. Id. at 141.
“Several district judges in this Circuit have taken this language to mean that merely writing to a supervisory official who
fails to act now suffices to establish personal involvement at the pleading stage.” Ciaprazi v. Fischer, No. 13-CV-4967,
2015 WL 1315466, at *7 (S.D.N.Y. Feb. 24, 2015), adopted in part, rejected in part on other grounds, 2015 WL 1315676
(S.D.N.Y. Mar. 24, 2015) (citing Jean-Laurent v. Lane, No. 11-CV-186, 2014 WL 5335981, at *9 (N.D.N.Y. Oct. 20,
2014); Selah v. Fischer, No. 09-CV-1363, 2013 WL 5603866, at *3 (N.D.N.Y. Oct. 11, 2013)). Others, however, have
stuck by the view that mere receipt of a letter or grievance is not enough. See, e.g., Huggins v. Schriro, No. 14-CV-6468,
2015 WL 7345750, at *4 (S.D.N.Y. Nov. 19, 2015); Ciaprazi, 2015 WL 1315466, at *7; Acevedo v. Fischer, No. 12-
CV-6866, 2014 WL 5015470, at *16 (S.D.N.Y. Sept. 29, 2014). The better view is that the unique procedural posture of
Grullon, in which the district court declined to permit a pro se plaintiff to amend his complaint, suggests that traditional
concerns of solicitude for pro se plaintiffs and Fed. R. Civ. P. 15's liberal amended policy underlay the Second Circuit's
decision, rather than a desire to modify the personal involvement analysis. See Ciaprazi, 2015 WL 1315466, at *8 (“In
Grullon, the court was concerned that the district judge had violated the principle that leave to amend should be granted
freely unless any amendment would be futile.”).
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19 That said, Plaintiff also alleges that, “both A.W's ... [were] made aware of Plaintiff's living conditions in cell #209
SHU.” (Am. Compl. ¶ 52.) Plaintiff's reference to the “A.W's” could be taken to refer to Dachisen, whom he also
describes as an “acting Warden.” (Id. ¶ 33.) Of course, an allegation that Dachisen was “made aware” of Plaintiff's living
conditions is strikingly close to the allegation rejected in Iqbal. See 556 U.S. at 680–81 (finding “disentitle[d] ... to the
presumption of truth” by virtue of their “conclusory nature” the plaintiff's allegations that two senior government officials
were “'knew of, condoned, and willfully and maliciously agreed to subject [him]' to harsh conditions of confinement
'as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological
interest'” (last two alterations in original) (emphasis added)). In any event, because Plaintiff does not identify Dachisen
as one of the “A.W's,” the Court will not assume he was one. Plaintiff can clarify the allegation in a Second Amended
Complaint.
20 Because Hickman is a lieutenant, (see Defs.' Mem. 5 n.4), context suggests he is to whom Plaintiff refers.
21 Although not entirely clear, it appears that the motion to which Plaintiff refers is one of his submissions to Judge
Griesbach, the Department of Justice, or the BOP. (See Am. Compl. ¶¶ 43–45.)
Additionally, in his Opposition, Plaintiff attached as Exhibit U a February 25, 2014 an “Administrative Detention Order”
signed by Hickman. (See Pl.'s Opp'n Ex. U (Administrative Detention Order).) To the extent that Plaintiff intends to
bring a claim against Hickman over his role in a confinement to the SHU, he should clarify his claims in his Second
Amended Complaint.
22 Although the “[qualified immunity] inquiry turns on the objective legal reasonableness of the action, assessed in light of
the legal rules that were clearly established at the time it was taken,” Pearson, 555 U.S. at 244, rendering the subjective
judgment calls of individuals beside the point, one signpost as to where a reasonable officer's judgment may lie perhaps
can be found in the fact that, after receiving Plaintiff's appeal, the acting administrator for national inmate appeals with
the BOP both wrote that “[t]he [w]arden at FCI Otisville ... adequately addressed [Plaintiff's] complaint” and explicitly
“concur[red] with the response[ ] provided.” (Pl.'s Opp'n Ex. A (Office of General Counsel Appeal).)
23 Even liberally construing Plaintiff's Amended Complaint, § 1985(3) is the only subsection that could underlie Plaintiff's
§ 1986 claim; the content of § 1985(1) and (2) is unambiguously unimplicated by Plaintiff's claims. See 42 U.S.C. §
1985(1), (2); cf. Dove v. Fordham Univ., 56 F. Supp. 2d 330, 337 n.3 (S.D.N.Y. 1999) (“Although [the plaintiff] does not
specify under which subsection of § 1985 he brings this action, only subsection three is applicable; § 1985(1) is entitled
'Preventing officer from performing duties,' and § 1985(2) is entitled 'Obstructing justice; intimidating party, witness,
or juror.'”), aff'd sub nom. Dove v. O'Hare, 210 F.3d 354 (2d Cir. 2000).
24 Because, in substance, Plaintiff alleges that he was denied a “legal phone call,” (Am. Compl. ¶ 83), Plaintiff's invocation
of the Sixth Amendment is best construed as an alleged violation of his right to counsel.
To be sure, “the right to counsel and the right of access to the courts are interrelated, since the provision of counsel can be
a means of accessing the courts.” Benjamin v. Fraser, 264 F.3d 175, 186 (2d Cir. 2001); see also Johnson v. Fischer, No.
12-CV-210, 2015 WL 670429, at *22 (N.D.N.Y. Feb. 17, 2015) (same). However, “the right of access to the courts is
grounded not in the Sixth Amendment but in various other constitutional provisions ....” Bourdon v. Loughren, 386 F.3d
88, 95 (2d Cir. 2004); see also Osgood v. Amato, No. 12-CV-565, 2013 WL 3777189, at *6 (N.D.N.Y. July 17, 2013)
(“[A]ccess claims concern the ability of prisoners to attack their sentences, directly or collaterally, and to challenge the
conditions of their confinement. By contrast the Sixth Amendment confers the right of a pretrial detainee, in a case
brought against him by the state, to utilize counsel in his defense.” (alterations and internal quotation marks omitted)).
25 Although Plaintiff alludes to his Fifth Amendment right of access to the courts, it appears the constitutional source
of that right is somewhat broader. See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (“Decisions of this Court
have grounded the right of access to courts in the Article IV Privileges and Immunities Clause, the Fifth Amendment
Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses” (citations omitted));
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Bourdon, 386 F.3d at 92 (“Prisoners ... have a constitutional right of access to the courts, as relevant to prisoners, in
the constitutional guarantees of equal protection and due process.” (citations and internal quotation marks omitted));
Hamilton v. Fischer, No. 12-CV-6449, 2015 WL 8207439, at *2 (W.D.N.Y. Dec. 7, 2015) (“The Supreme Court has
'made explicit that the [First Amendment] right to petition extends to all departments of the Government, and that [t]he
right of access to the courts is ... but one aspect of the right of petition.'” (second and third alterations in original)
(some internal quotation marks omitted) (quoting BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 525 (2002))); Groenow
v. Williams, No. 13-CV-3961, 2014 WL 941276, at *7 (S.D.N.Y. Mar. 11, 2014) (report and recommendation) (“The
Supreme Court has 'grounded' this right [of access to the courts] in a number of constitutional provisions, including the
Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process
Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses.”)
26 Because Plaintiff argues that Conklin retaliated against Plaintiff on the basis of his statements, Plaintiff's retaliation claim
—to the extent that he states one—is appropriately considered a claim for First Amendment retaliation. (See, e.g., Am.
Compl. ¶¶ 3, 6, 12, 24–26 (describing Plaintiff's various statements to Conklin leading up to his placement in the SHU).)
27 In considering some of these alleged possible adverse actions, the Court notes that, despite arguing that “Plaintiff failed
to exhaust his administrative remedies with respect to any allegations of retaliation outside of the alleged false incident
report grievance,” (Defs.' Mem. 23–24), Defendants also indicate that “the only relevant allegations regarding Plaintiff's
retaliation claim that are properly before this Court allege Conklin's singling Plaintiff out, making sarcastic comments
toward and pat searching Plaintiff, and then filing an allegedly false incident report against Plaintiff,” (id. at 24 (citing
Am. Compl. ¶¶ 5–6, 10–14, 24–26)). Therefore, although it is not obvious to the Court that Plaintiff's allegations
concerning Conklin's alleged sarcastic comments, for instance, would fall within the ambit of his concededly exhausted
claim concerning the false incident report grievance, the Court treats them as potential instances of adverse action all
the same. See Paese v. Hartford Life & Acc. Ins. Co., 449 F.3d 435, 445 (2d Cir. 2006) (“[A] litigant's failure to exhaust
in the PLRA context is an affirmative defense that can be waived ....”).
28 Plaintiff's allegations make clear that the incident report was prepared sometime before Plaintiff met with Ferdula and
the other officer on December 6, 2013. (See Am. Compl. ¶¶ 17–19 (noting that Plaintiff was called from Ferdula's office
into the “Lt.'s office,” where he was read the contents of Conklin's incident report).)
29 The video footage he requests is:
• SHU upstairs range surveillance video from 7:00 pm on December 16, 2013, (Pl.'s Evid. Mot. at 2);
• SHU control surveillance videos for cell #209 (1) from 5:30 am through 7:00 am on March 6, 2014, and (2) from
6:00 am through 9:00 am on March 11, 2014, (id.);
• SHU control surveillance videos “for the hour of 12[ ][noon] through 2:30 pm on March 5 and 12, 2014,” (id.);
• All D-A Unit internal and external (unit tiers and walkways) surveillance videos “that tend[ ] to show staff and
inmate movement to and from D-A unit” between 4:30 pm and 6:00 pm on December 6, 2013, (id. at 3);
• “All D-B United [sic] internal and external (Unit tiers and walkw[ ]ays) surv[e]illance videos (including video from
D-A Unit camera(s) that tend[ ] to show staff and inmate movement to and from D-B Unit),” (id.);
• “All D-B Unit hallway internal and external (Unit walkways) surv[e]illance video (including video from D-A Unit
cameras/tiers and walkways that tends to show staff and inmate movement to D-B from D-A Unit) between the
hours of 4:30p.m. through[ ] to 7:30p.m. on 12/6/2013,” (id.); and
• “All D-B Unit internal and external (Unit Dorm) surv[e]illance videos that tend[ ] to show staff and inmate movement
from D-B Unit Dorm to hallway walkway between the hours of 2:30p.m. through to 10: Oclock [sic] on or about
12/16/2013 [sic], 12/7/2013 [sic] ....,” (id.).
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The sign-in logs Plaintiff requests are:
• SHU upstairs range sign-in log from 7:00 pm on December 16, 2013, (id. at 2);
• Unit D-A log entries for December 6, 2013, (id. at 3); and
• Unit D-B log entries for “on or about” December 16, 2013 or December 7, 2013, (id.).
30 The footage Plaintiff seeks principally dates back to December 2013, although some of his requests extend to March
2014. (See Pl.'s Evid. Mot. 2–3.) He offers no explanation as to the logic by which he concludes that such footage,
if subject to a “12 month holding period,” would be “set to expire” after the submission of his July 2015 motion, as
opposed to in December 2014 or March 2015. (See id. at 5.)
31 Plaintiff appears skeptical that Defendants actually destroyed the videotape, arguing in his Reply submission that they
must have seen it to have affirmed the denials of his grievance. (See Pro Se Pl.'s Response and Sanction for Spoliation of
Evid. Mot. to the Def.'s Mem. of Law in Response to Pl.'s Mot. To. Preserve Evid. (“Pl.'s Evid. Reply”), at unnumbered
15–16 (Dkt. No. 48).) Plaintiff's conjecture, however, is insufficient to override the contents of the McBride Declaration.
32 Technically, Plaintiff also requested the D-B Unit logbook for December 16, 2013, (see Pl.'s Evid. Mot. 3), although it
was not mentioned as something that Defendants would produce or retain in the McBride Declaration, (see McBride
Decl. ¶¶ 9–10). The Court thinks—as, it suspects, Defendants do too—that Plaintiff's allusions to December 16 was
a typo, since he requests the logbook for “12/16/2013 [and] 12/7/2013,” (see Pl.'s Evid. Mot. 3.), and because his
allegations about events that occurred in the D-B unit seem to have occurred on December 6, (see Am. Compl. ¶¶ 7–
12). Consistent with that intuition, the McBride Declaration indicates that Defendants conducted searches for evidence
from December 6 in addition to requests for evidence from December 16. (Compare, e.g., Pl.'s Evid. Mot. 2 (requesting
SHU footage and the SHU sign-in book from December 16, 2013), with McBride Decl. ¶¶ 6, 9–10 (indicating that he
searched for footage from the SHU on December 6 and December 16 and that he was producing the December 6 SHU
logbook and would retain the December 16 SHU logbook).) Therefore, while it would not technically be correct to say
that everything Plaintiff requests was either destroyed before his Motion, produced, or retained, that is essentially true.
33 In his reply, Plaintiff presents additional arguments that arguably touch on the irreparable harm inquiry; however, they
do not affect the outcome here. More specifically, Plaintiff argues that his “'Personal Experi[e]nce with BOP Staff' ...
sufficiently demonstrates the BOP policy, practice and custom to create an irreparable harm” and that he “personally
handed to Lt. Susney, on Dec. 9, 2013[,] the Monday Plaintiff was release[d] from SHU” his “cop-out-complaint,”
apparently in an attempt to suggest that Defendants should have preserved the evidence while it still existed. (Pl.'s
Evid. Reply, at unnumbered 1.) The first argument fails because Plaintiff's suspicions of BOP staff do not amount to a
likelihood of irreparable harm. Cf. True the Vote, Inc. v. Internal Revenue Serv., No. 13-CV-734, 2014 WL 4347197,
at *3 (D.D.C. Aug. 7, 2014) (noting in irreparable harm component of preliminary injunction proceedings in which the
plaintiff alleged spoliation of emails that “despite the general distrust of the defendants expressed by the plaintiff, the
[c]ourt has no factual basis to concur with that distrust”). Plaintiff's assertion that he complained to Susney on December
9 is not enough because it is not at all clear that one complaint to one prison official almost three weeks before Plaintiff
even filed his BP-8, (see Pl.'s Opp'n Ex. B. (BP-8 Form, dated Dec. 28, 2013)), entitles him to an injunction forbidding
the Defendants from destroying that evidence, which was erased pursuant to prison practice well over a year before
Plaintiff moved for a preliminary injunction, given that “[t]he purpose of a preliminary injunction is to preserve the
status quo ....” SymQuest Grp, 2015 WL 6813599, at *4.
34 Of course, if the videotape that Plaintiff requests does not constitute “electronically stored information” within the
meaning of Rule 37(e), then the Rule 37(e)'s change is beside the point. While such a legal detour is unnecessary, it
is merits noting the issue is, at a minimum, the sort over which parties could fight. Compare Wilder v. Rockdale Cty.,
No. 13-CV-2715, 2015 WL 1724596, at *3 (N.D. Ga. Apr. 15, 2015) (considering the old Fed. R. 37(e) in context of
alleged spoliation of a jail cell surveillance video), and Olson v. Sax, No. 09-CV-823, 2010 WL 2639853, at *3 (E.D.
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Wis. June 25, 2010) (“[T]he only evidence before the [c]ourt indicates that the recording over of the video record from
July 22, 2008, was part of [the defendant's] routine good faith operation of its video system .... Therefore, pursuant to
Rule 37(e) of the Federal Rules of Civil Procedure, the [c]ourt denies [the plaintiff's] motion for sanctions.”), with In
re Kessler, No. 05-CV-6056, 2009 WL 2603104, at *16 (E.D.N.Y. Mar. 27, 2009) (considering Rule 37(e) in context
of automatically taped-over footage of a fire but indicating that it was “not applicable here”); see also Fed. R. Civ. P.
34(a) advisory committee's note to 2006 amendment (noting that “[t]he wide variety of computer systems currently in
use, and the rapidity of technological change, counsel against a limiting or precise definition of electronically stored
information,” and that “[r]eferences elsewhere in the rules to 'electronically stored information' should be understood
to invoke this expansive approach”).
35 28 U.S.C. § 2074 provides in pertinent part:
The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under
section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December
1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix
the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the
application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which
such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work
injustice, in which event the former rule applies.
36 In their Sur-Reply, Defendants argue that “Plaintiff more likely than not did not submit a cop-out on December 9,
2013,” (see Defs.' Sur-Reply in Resp. to Pl.'s Mot. To Preserve Evid. 4 (Dkt. No. 61)), because (1) nothing in Plaintiff's
BP-8 submission refers to Plaintiff submitting a cop-out to Susney, (see id. at 2 (citing Pl.'s Opp'n 45–47)), (2) Susney
does not recall receiving a cop-out form Plaintiff in December 2013 or January 2014, (id. (citing Decl. of David Susney
(“Susney Decl.”) ¶ 5 (Dkt. No. 62))), (3) Susney reviewed his files, but did not find any cop-out from Plaintiff during
the relevant time period, (id. (citing Susney Decl. ¶ 6)), (4) agency counsel at the BOP reviewed Plaintiff's Central File
and any electronic requests to staff by Plaintiff, but neither contained a reference to a cop-out from December 9, 2013
or a request for an investigation and review of security cameras relating to the December 6, 2013 incident, (id. (citing
Decl. of Stephanie Scannell-Vessella ¶¶ 5–6, 8 (Dkt. No. 63))), and (5) when Plaintiff met with Susney to discuss his
putative restraining order filed in the Eastern District of Wisconsin in late February 2014, Plaintiff, according to Susney,
alluded to having sent a cop-out regarding Plaintiff's allegations against Conklin, but Susney recalled thinking during
that conversation that he had received no such cop-out, (id. at 2–3 (citing Susney Decl. ¶ 7)). The Court agrees that these
are strong reasons to question whether Plaintiff in fact submitted a cop-out on December 9, 2013. However, because
Plaintiff's claims regarding his supposed submission of a cop-out are insufficient to trigger a preservation obligation,
the Court need not—and, therefore, at this juncture, does not—take a stand on whether Plaintiff in fact submitted the
supposed cop-out.
37 Of course, for the same reason, Plaintiff cannot meet his burden of showing that it is relevant. See Residential Funding
Corp., 306 F.3d at 107 (requiring the party seeking an adverse inference to show “that the destroyed evidence was
relevant to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim
or defense”).
38 It is worth observing here that “a finding that a party breached its discovery obligations in bad faith is sufficient to
establish the relevance of untimely produced or destroyed evidence as a matter of law; a finding that a party breached its
obligations through gross negligence is 'frequently' sufficient.” In re Sept. 11th Liab. Ins. Coverage Cases, 243 F.R.D.
114, 125 (S.D.N.Y. 2007) (citing Residential Funding, 306 F.3d at 109). The Court does not see any reason to conclude
that the deletion of the video was conducted in bad faith, however, and, accordingly, will not dispense with the relevance
requirement.
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Murray v. Noeth, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 12153214
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
Willie MURRAY, Plaintiff,
v.
Joseph NOETH, et al., Defendant.
6:19-CV-06342 EAW
|
Signed November 29, 2021
Attorneys and Law Firms
Willie Murray, Chicago, IL, Pro Se.
Hillel David Deutsch, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendants Joseph Noeth, P.
Carroll, C.O. Miles Erickson, Timothy Foster, B. Hembrook, D. Williams.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
*1 Pro se Plaintiff Willie Murray (“Plaintiff”), a prisoner currently confined at the Elmira Correctional Facility, filed this civil
rights action asserting claims under 42 U.S.C. § 1983. (Dkt. 1). Plaintiff alleges that Defendants violated his constitutional rights
during his prior confinement at the Attica Correctional Facility (“Attica”). In its February 18, 2021 screening order (Dkt. 19)
of Plaintiff's amended complaint (Dkt. 14), the Court allowed some claims to proceed to service. Currently before the Court
are several motions.
DISCUSSION
I. Defendants’ Motion for Hearing
On May 24, 2021, defendants Joseph Noeth, P. Carroll, B. Hembrook, and D. Williams (“Defendants”) filed a motion seeking
a hearing on the question of exhaustion of administrative remedies in lieu of answer. (Dkt. 25). In their motion, Defendants
contend that a motion for summary judgment in lieu of answer on grounds of failure to exhaust administrative remedies is not
appropriate procedurally because the question of exhaustion may only be determined by hearing, rather than by motion. But the
cases cited by Defendants provide no legal support for this position. Indeed, while certainly some cases may require a hearing to
resolve the question of exhaustion, see Hudson v. Kirkey, No. 9:20-CV-0581 (LEK/DJS), 2021 WL 1966721, at *4 (N.D.N.Y.
May 17, 2021), motions for summary judgment on grounds of exhaustion of administrative remedies are routinely decided by
courts without need for a hearing, see, e.g., Barros v. Anaya, No. 19-CV-740, 2021 WL 5505859, at *5 (D. Conn. Nov. 24, 2021)
(“The key issue raised in Defendant's motion for summary judgment is whether Plaintiff exhausted administrative remedies
as required under the Prisoner Legal Reform Act (“PLRA”)”); Moco v. Janik, No. 17-CV-398-FPG, 2021 WL 5309744, at *2
(W.D.N.Y. Nov. 15, 2021) (“Defendants primarily argue that summary judgment is appropriate on Moco's claims because he
failed to exhaust his administrative remedies.”). Plaintiff opposes the hearing requested by Defendants and contends that he did
exhaust his administrative remedies regarding the claims in his amended complaint. (Dkt. 30).
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The Court concludes that Defendants have not justified departing from the normal procedure to warrant conducting a hearing on
the exhaustion issue prior to the filing of an answer. To the extent Defendants wish to pursue bifurcation of discovery to resolve
the exhaustion question prior to other merits discovery, they are free to propose as much in their discovery plan, but the instant
motion is denied. Defendants shall answer, move, or otherwise respond to Plaintiff's amended complaint by December 20, 2021.
II. Motion for Appointment of Counsel
On September 20, 2021, Plaintiff filed a motion for the appointment of counsel in light of an error he discovered in his amended
complaint. (Dkt. 36). He argues that the assistance of an attorney would permit him to avoid similar errors, effectively prosecute
his case, and timely respond to Defendants’ filings.
*2 In evaluating Plaintiff's request for the appointment of counsel, the threshold question for the Court is whether his claims
have merit. See Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). Although there is no constitutional right to appointed
counsel in civil cases, under 28 U.S.C. § 1915(e)(1), a court may appoint counsel to assist indigent litigants. See, e.g., Sears,
Roebuck & Co. v. Charles W. Sears Real Estate, Inc., 865 F.2d 22, 23 (2d Cir. 1988). If the litigant “appears to have some chance
of success,” the court will then consider a number of additional factors in deciding whether to appoint counsel. See Hodge v.
Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). However, as noted above, Defendants have not yet responded to the amended
complaint. The only facts upon which this Court may base its determination are Plaintiff's own allegations. Thus, the Court
lacks sufficient information at this stage to consider the factors set forth in Hodge. Plaintiff's motion for the appointment of
counsel is therefore denied without prejudice as premature.
III. Motion for Hearing on Service
Finally, on September 29, 2021, Plaintiff filed a motion regarding service on defendants Miles Erickson (“Erickson”) and T.
Foster (“Foster”). (Dkt. 37). Summonses were issued for Erickson and Foster on February 22, 2021, but on April 14, 2021,
they were returned unexecuted because Erickson and Foster did not return the Statement and Acknowledgement of Receipt of
Service by mail, pursuant to N.Y. C.P.L.R. § 312-a. (Dkt. 20). On April 28, 2021 summonses were reissued, but they were also
returned unexecuted for these defendants on June 22, 2021. (Dkt. 31).
In this motion, Plaintiff appears to request that the Court direct counsel for Defendants agree to accept service on behalf of
Erickson and Foster. Rather that direct the relief Plaintiff seeks, the Court will construe Plaintiff's motion as a motion for
extension of time to serve Erickson and Foster. The Court finds that Plaintiff has established good cause for such extension
under Fed. R. Civ. P. 4(m), and he is granted an extension of time to serve the summons and amended complaint by no later
than 90 days after the date of this Decision and Order.
Additionally, pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), the New York State Attorney General's Office is
directed to ascertain defendant Foster's first name, as well as the current last known addresses for both Erickson and Foster.
The Attorney General's Office need not undertake to defend or indemnify Erickson or Foster at this juncture. This order merely
provides a means by which Plaintiff may name and properly serve defendants, as instructed by the Second Circuit in Valentin.
The New York State Attorney General is hereby requested to forward the information specified above to the Pro Se Unit, United
States District Court, Western District of New York, 100 State Street, Rochester, NY 14614 by December 27, 2021. Once this
information is provided, amended summonses shall be issued, and the Clerk of Court shall cause the United States Marshals
Service to serve defendants Erickson and Foster.
CONCLUSION
For the reasons set forth above, Defendants’ motion for a hearing (Dkt. 25) is denied, Plaintiff's motion for the appointment of
counsel (Dkt. 36) is denied without prejudice, and Plaintiff's motion for service (Dkt. 37) is granted in part.
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SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 12153214
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2012 WL 4445475
Only the Westlaw citation is currently available.
United States District Court, D. Connecticut.
Carlos ROMAN, Plaintiff,
v.
John VELLECA, et al, Defendants.
Civil Action No. 3:11cv1867(VLB).
|
Sept. 25, 2012.
Attorneys and Law Firms
William Sylvester Palmieri, Law Offices of William S. Palmieri, LLC, New Haven, CT, for Plaintiff.
Nicole C. Chomiak, Stacey L. Pitcher, Nuzzo & Roberts, Cheshire, CT, Vikki Cooper, Corporation Counsel City of Stamford,
Stamford, CT, for Defendants.
MEMORANDUM OF DECISION GRANTING DEFENDANTS' [DKT. # 16] MOTION TO
VANESSA L. BRYANT, District Judge.
*1 Before the Court is the Defendants' Motion to Dismiss the complaint of the Plaintiff, Detective Carlos Roman of the
New Haven Police Department, alleging that he was subjected to four counts of unlawful mistreatment in the course of his
employment. The Defendants, John Velleca (“Velleca”), Frank Limon (“Limon”), and the City of New Haven (the “City”)
now move to dismiss the Plaintiff's complaint on the grounds that the Plaintiff has failed to state a claim upon which relief
can be granted. In his complaint, Plaintiff alleges that “the Defendants engaged in discrimination, harassment, hostile work
environment, disparate treatment of, and retaliation against” the Plaintiff in violation of his rights under the Constitution, federal
law, and Connecticut state law. In Count I of his complaint, the Plaintiff claims that Velleca's actions constitute a violation of
the Plaintiff's equal protection, First Amendment, and substantive and procedural due process rights. In Count II, the Plaintiff
reasserts his Count I claims as applied to the actions of Defendant Frank Limon. In Count III, the Plaintiff alleges that “the
actions and conduct of the Defendant City of New Haven evince an official policy or custom which has caused the Plaintiff to
be subject to a denial of ... his constitutional rights,” subjecting the city to municipal liability for the claims set forth in Counts
I and II. Finally, in Count IV, the Plaintiff alleges that Defendants Velleca and Limon unlawfully and intentionally inflicted
extreme emotional distress upon the Plaintiff. The Defendants have filed a motion to dismiss counts one through four of the
Plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the Defendants' motion is granted.
Factual Background
Plaintiff, Carlos Roman, has been a police officer for the New Haven Police Department for approximately nineteen years and
alleges that he has been a “loyal and valuable employee” with “an excellent employment record.” [Dkt. # 1, Compl. Count I, ¶
10]. He now claims that the City and members of the Department subjected him to unlawful abuse on multiple occasions, and
seeks relief for the allegedly ongoing mistreatment. Id. at ¶ 1.
A. The Initial Altercation
In July of 2010, the Plaintiff was employed as a Major Crimes Unit Detective for the New Haven Police Department. Id. at
¶¶ 11, 12. At that time, the Department's Major Crimes Unit was undergoing a personnel change directed by Defendant then-
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Lieutenant John Velleca. Id. at ¶¶ 7, 13. On or around July 26, 2010, when Defendant Velleca directed the Plaintiff to bring a
memorandum of the new transfers and assignments to Defendant Velleca's office, the Plaintiff chose to express the concerns he
had regarding the change. Id. at ¶ 12. Although Plaintiff himself was not named on the transfer list, he was concerned that the
transfers would “negatively impact[ ] the provision of police services to the public.” Id. at If 16.
*2 When the Plaintiff raised his concerns, however, “Defendant Velleca began yelling at Plaintiff,” and informed Plaintiff “in
a loud and threatening manner” that the changes had been made “ ‘because [Velleca] said so.’ “ Id. at If 13. Distressed, the
Plaintiff “responded by looking downward at the floor.” Id. at If 16. According to the Plaintiff, Defendant Velleca nevertheless
continued his “threatening tirade.” Id. at If 19. After first directing the Plaintiff to close the door “so that others would not
overhear,” the Defendant “instructed the Plaintiff to voice his concerns.” Id. at If 14. The Plaintiff complied, and “spoke out on
matters of public concern,” by opining to Velleca that “a strong bond and trust exists between the detectives in the squad,” such
that “transferring in new detectives while transferring the existing detectives to other units would make working relationships
difficult, thereby negatively impacting the provision of police services to the public.” Id. at If 15. The Plaintiff claims that
Defendant then responded by violently, repeatedly and profanely “shout[ing] at the Plaintiff, ‘Get the f——k out! I'm not
listening to this s——t! Get out!’ “ while clenching his fist and repeatedly pounding it against his desk. Id. at ¶¶ 17, 18. The
Plaintiff asserts that, in his rage, “the veins in the Defendant Velleca's neck protruded and saliva flew from his mouth,” causing
the Plaintiff to fear for his safety, “convinced that the Defendant ... was going to attack him.” Id. at ¶¶ 20, 21. When Velleca then
threatened to “mak[e] [Plaintiff's] life miserable,” the Plaintiff sought to make clear that his concerns were for public safety
and “not simply his own assignment.” Id. at ¶¶ 24, 25. Accordingly, he assured Velleca that “ ‘No matter what decisions” were
made, he would “continue to come to work and give one hundred percent.” Id. at ¶ 25.
Immediately after the Plaintiff left the office, Defendant Velleca directed that the Plaintiff be written up for voicing his concerns.
Id. at ¶ 36. Yet what is more, soon after the incident, on July 27, 2010, the Plaintiff received a transfer order, which “was signed
by Defendant Limon, and copied to Defendant Velleca.” Id. at ¶ 41. The Plaintiff alleges that Defendant Velleca “obtained the
transfer of the Plaintiff to a less desirable assignment” by “making false statements about the incident to an Assistant Chief.”
Id. at ¶ 41. Plaintiff, an Hispanic officer, also claims that Defendant Velleca has a history of similar “discriminatory, harassing,
abusive, and retaliatory conduct” toward minority employees and female officers. Id. at ¶ s 5, 43.
Consequently, the Plaintiff filed a formal complaint against Velleca with his supervisors. Id. at ¶ 26. He also forwarded copies
of the complaint to the New Haven Police Union, his private attorney, the National Latino Peace Officers Association, and the
“Commission of Human Rights.” Id. at ¶ 26.
B. The August 12 Incident
*3 The Plaintiff asserts that a second episode of harassment by Defendant Velleca took place the following month, around
August 12. Id. at ¶ 45. The incident began, according to the Plaintiff, when Defendant Velleca approached the Plaintiff's new
desk, “stared at him,” and repeatedly asked, “Do you have a problem?” Id. at ¶¶ 45, 47. When the Plaintiff remained silent,
the Defendant stated, “Yeah, I didn't think so!” and left. Id. at ¶ 48. Immediately after the incident, the Plaintiff complained to
his supervisor. At that time, accompanied by his supervisor, the Plaintiff informed Defendant Velleca that he would not tolerate
the Defendant's harassment. Id. at ¶ 50. In response, Velleca again threatened the Plaintiff, telling him, “Carlos, you did not
learn your lesson, but you will!” Id. at ¶ 51. Once again, “after he finished berating and humiliating the Plaintiff, the Defendant
Velleca ordered Plaintiff's supervisor ... to write up the Plaintiff,” even though he was “unable to specify a violation ... upon
which to discipline the Plaintiff.” Id. at ¶¶ 69, 71. Additionally, Defendant Velleca also “filed a written disciplinary report to
the Defendant Limon, once again falsely claiming that the Plaintiff had engaged in misconduct.” Id. at ¶ 74.
Subsequent to the August 12 incident, the Plaintiff made verbal complaints, which he later followed up with written complaints,
to his supervisor, his Union representatives, and the City of New Haven. Id. at ¶¶ 52, 53, 72. In his written complaints, the
Plaintiff made clear that the Defendant's behavior not only “made him afraid to be in the workplace,” but also “made him feel
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like a prisoner in his own home as well, as he ... worried that Velleca [would] show up there, and threaten him and his family.”
Id. at ¶ 60.
C. Allegations of Continued Mistreatment
On August 24, 2010, Defendant Velleca again ordered a supervisor to “discipline the Plaintiff” for pretextual reasons with the
motive “to further discriminate against, harass, and retaliate against the Plaintiff.” Id. at ¶ ¶ 77, 78, 79. When the matter was
referred to Defendant Assistant Chief Limon, however, Limon disregarded the Plaintiff's complaints and ignored the positive
appraisal of the Plaintiff offered by his supervisor. Id . at ¶ s 83, 84. Thus, on November 10, 2010, Defendant Limon suspended
the Plaintiff for three days “on the basis of [the] false and pretextual claims” put forth by Velleca. Id. at If 85.
Finally, after the Plaintiff filed an additional grievance about his mistreatment, on March 14, 2010, the Defendant City of New
Haven acknowledged that “ ‘some of Lt. Velleca's actions were inappropriate for a supervisor,’ and that Velleca both initiated
and escalated the inappropriate contact with the Plaintiff.” Id. at ¶¶ 86, 87. Nevertheless, according to the Plaintiff, “the City
of New Haven failed, refused, or neglected to discipline the Defendant” or to “act to prevent further harm to the Plaintiff.”
Id. at If 88. Consequently, around July 29, 2011, the Plaintiff was wrongfully excluded from routine training as a result of
the Defendants' continued unlawful conduct. Id. at If 91. Indeed, according to the Plaintiff, “the Defendant Velleca, now an
Assistant Chief, continues to subject the Plaintiff to harassment.” Id. at If 90. As a result, the Plaintiff claims that he continues
to suffer economic and psychological losses. Id. at If 93. For example, on one occasion, “Velleca's conduct caused the Plaintiff
to be upset and agitated,” so that he was “forced to leave his workplace and to use a sick day.” Id. at If 68
*4 For the aforementioned reasons, the Plaintiff seeks relief for the mistreatment he claims to have undergone in the course
of his employment. Id. at If 1.
Legal Standard
“ ‘To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face.’ “ Sarmiento v. U.S., 678 F.3d 147 (2d Cir.2012)(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129
S.Ct. 1937, 173 L.Ed.2d 868 (2009)). While Rule 8 does not require detailed factual allegations, “[a] pleading that offers ‘labels
and conclusions' or ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ “ Iqbal, 556 U.S. at 678 (citations and internal quotations
omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line
between possibility and plausibility of ‘entitlement to relief.’ “ Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). 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.” Id. (internal citations omitted).
In considering a motion to dismiss for failure to state a claim, the Court should follow a “two-pronged approach” to evaluate the
sufficiency of the complaint. Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir.2010). “A court ‘can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.’ “ Id. (quoting Iqbal, 129
S.Ct. at 1949–50). “At the second step, a court should determine whether the ‘well-pleaded factual allegations,’ assumed to
be true, ‘plausibly give rise to an entitlement to relief .’ “ Id. (quoting Iqbal, 556 U.S. 679). “The plausibility standard is not
akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal,
556 U.S. at 678 (internal quotations omitted).
Analysis
A. Discrimination, Harassment, and Hostile Work Environment Claims
To begin, the Plaintiff alleges that the Defendants subjected him to discrimination in the form of disparate treatment, harassment,
hostile work environment, and retaliation. An employee subjected to such unlawful treatment has a cause of action under both
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Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Connecticut Fair Employment Practices Act (“CFEPA”). A
Plaintiff's Title VII and CFEPA claims will not stand, however, where the Plaintiff (1) brings his complaint prematurely, (2)
issues a complaint alleging inadequate factual allegations, or (3) fails to properly substantiate his claim.
First, because voluntary compliance is the “preferred means for enforcing Title VII,” before resorting to the courts a Title VII
Plaintiff must make preliminary attempts to resolve his dispute by filing a charge with the Equal Employment Opportunity
Commission (“EEOC”) or an equivalent state agency and obtaining a right-to-sue letter. W.R. Grace & Co. v. Local Union
759, 461 U.S. 757, 771, 103 S.Ct. 2177, 76 L.Ed.2d 298, (1983); Williams v. New York City Hous. Auth., 458 F.3d 67, 71 (2d
Cir.2006). Similarly, this court has held that a complaint under the CFEPA cannot survive where the Plaintiff did not first file
a timely claim with the Connecticut Commission on Human Rights and Opportunities (“CHRO”). Spell v. Connecticut, 602
F.Supp.2d 387, 392 (D.Conn.2009).
*5 The Supreme Court has held that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite
to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). The Second Circuit has explained
that “[e]very circuit before us that has faced the question has held that a plaintiff's failure to obtain a notice-of-right-to-sue-
letter is not a jurisdictional bar, but only a precondition to bringing a Title VII action that can be waived by the parties or the
court. Pietras v. Bd. of Fire Com'rs of Farmingville Fire Dist., 180 F.3d 468, 474 (2d Cir.1999) (citing Rivers v. Barberton Bd.
of Educ., 143 F.3d 1029, 1031 (6th Cir.1998); McKinnon v. Kwong Wah Restaurant, 83 F.3d 498, 505 (1st. Cir.1996); Gooding
v. Warner–Lambert Co., 744 F.2d 354, 358 (3d Cir.1984)).
In this case, the Plaintiff does not allege or otherwise informed the Court that he had at any time filed a complaint with the
EEOC or obtained a right-to-sue letter. The Plaintiff does, however, allege to have “forwarded a copy” of a complaint he had
written to his supervisor to “the Commission of Human Rights.” Nevertheless, the Plaintiff's complaint does not make clear
whether the Plaintiff filed a formal complaint under Title VII or CFEPA with the CHRO. In addition, neither plaintiff nor
defendant has set forth any circumstances indicating that the failure to obtain a right to sue letter has been waived by either
party. Moreover, this Court sees no good cause to apply estoppel, equitable tolling or waiver to this requirement. Consequently,
Plaintiff's employment discrimination, retaliation and hostile work environment claims under Title VII and CFEPA claims are
barred by Plaintiff's failure to timely file a charge of discrimination with the EEOC.
Assuming arguendo that Plaintiff did timely file a charge of discrimination with the EEOC and obtained a right to sue letter,
the Plaintiff's employment discrimination, retaliation and hostile work environment claims under Title VII and CFEPA cannot
stand because they rest solely on legal conclusions and do not, as a matter of law, provide sufficient factual grounds to comply
with the plausibility standard set forth in Iqbal, 129 S.Ct. at 1949.
i. Title VII Disparate Treatment Claim
Discriminatory treatment claims under Title VII depend on the plaintiff's ability to show that (1) he is a member of a protected
class; (2) he was qualified for his position; (3) he suffered an adverse employment action; and (4) the circumstances surrounding
the employment action give rise to an inference of discrimination. Adams–Martin v. CT Dept. of Dev. Services, No.3:10–
cv00099(VLB), 2012 WL 878306, *16 (D.Conn. Mar. 14, 2012) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).
Here, the first and second prongs of the test are satisfied because the Plaintiff is a Hispanic employee, and his complaint identifies
him as a loyal employee with an excellent employment record. In addition, Plaintiff has arguably satisfied the third prong of
the test by alleging that he was demoted and was suspended for three days to survive a 12(b)(6) challenge. However, courts
have held that mere inconvenience or changes in job responsibilities do not rise to the level of materially adverse employment
action. See Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d. Cir.2000) (holding that a demotion may constitute
a materially adverse action only when “evidenced by a decrease in wage or salary, a less distinguished title, a material loss of
benefits, significantly diminished material responsibilities, or other indices' ”) (quoting Crady v. Liberty Nat'l Bank and Trust
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Co., 993 F.2d 132, 136 (7th Cir.1993)). Likewise courts have found that a suspension without pay only in certain circumstances
can constitute an adverse employment action. See, e.g., Lovejoy–Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223–224 (2d
Cir.2001) (holding that one-week suspension without pay is adverse action, even if pay is later reimbursed, because plaintiff “at
least suffered the loss of the use of her wages for a time”); Page v. Connecticut Dep't of Pub. Safety, Div., of State Police, 185
F.Supp.2d 149, 157 (D.Conn.2002) (“In this case, plaintiff was suspended for two days without pay. Thus, she lost wages. She
was also orally counseled for three alleged incidents of unacceptable work behavior and then reprimanded in writing. These
would be sufficient to support a jury's finding that she suffered adverse employment action.”); Cormier v. City of Meriden, 420
F.Supp.2d 11, 21 (D.Conn.2006) (finding that “the one-day suspension without pay, which also resulted in a one-year loss of
eligibility for the crew-leader premium, and the written disciplinary letters, which were placed in plaintiff's personnel file, can
be considered adverse employment actions”); Dobrynio v. Central Hudson Gas & Electric Corp., 419 F.Supp.2d 557, 564–565
(S.D.N.Y.2006) (rejecting “as a matter of law Plaintiff's contention that the loss of one day's pay worked a substantial change in
the terms and conditions of his employment ... But being suspended for a single day, with no long term consequences whatever,
is not an actionable adverse employment action because it is not material.”) (emphasis in the original).
*6 Plaintiff's claim nonetheless fails as he has not alleged any facts which plausibly establish the final prong of the analysis.
As to Defendant Velleca, the Plaintiff provides no factual grounds to provide a plausible basis for concluding that Defendant
engaged in discrimination based on racial animus. Indeed, although Plaintiff complains about Defendant Velleca's history
of racism and his “bias and bigotry toward [Plaintiff] on the basis of plaintiff's race,” he provides no factual allegations to
substantiate the conclusion. Plaintiff does not even attempt to show that an employee outside his protected class, who was
“similarly situated” and who “engaged in comparable conduct,” was treated more favorably by the Defendant. Ruiz v. Cnty. Of
Rockland, 609 F.3d 486, 493–4 (2d Cir.2010) (holding that an inference of discrimination may be found where the plaintiff is
treated less favorably than a similarly situated employee not in plaintiff's protected class). What is more, the Plaintiff makes
clear that Defendant Velleca's retaliation stemmed from the parties' July 26 dispute regarding personnel transfers, and not from
Defendant's alleged racial prejudice.
As to Defendants Limon and the City of New Haven, the Plaintiff offers nothing more than the legal conclusion that Defendants
have engaged in “invidious discrimination.” Indeed, the complaint expressly states that Defendant Limon relied on false
allegations, and not discriminatory prejudice, when he suspended Plaintiff for three days. Plaintiff has therefore failed to fulfill
his burden of establishing a plausible inference of discrimination. Consequently, Plaintiff's Title VII disparate treatment claim
is dismissed on this basis as well.
ii. Title VII Retaliation Claim
The Plaintiff also alleges that the Defendants exercised unlawful retaliation under Title VII. In order to establish a retaliation
claim, a plaintiff must show: “(1) participation in a protected activity; (2) that the defendant knew of the protected activity;
(3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment
action.” Hicks v. Baines, 593 F.3d 159, 162 (2d. Cir.2010) (quoting Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d
Cir.2005)). For the purposes of retaliation claims under Title VII, “adverse employment actions” include any “employer actions
that would have been materially adverse to a reasonable employee.” Burlington Northern and Santa Fe Ry. Co. v. White, 548
U.S. 53, 57, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).
In this case, it does not appear that the Plaintiff filed a grievance with the EEOC or a proper complaint with the CHRO.
Plaintiff did, however, engage in a protected act when he filed complaints with his supervisor and forwarded them to his Union,
his attorney, and the Commission. See Martin v. Town of Westport, 558 F.Supp.2d 228, 245 (D.Conn.2008) (“[T]he filing of
internal complaints of discrimination prohibited by CFEPA, or of a CHRO complaint, would constitute protected activities.”).
Nevertheless, even to the extent that the Plaintiff engaged in a protected activity, Plaintiff's claim must fail. After all, “the
antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.”
White, 548 U.S. at 67. In his complaint, the Plaintiff fails to demonstrate that, as a result of filing his complaints, he suffered an
adverse employment action rising to the level that a reasonable employee would have been deterred from complaining to the
proper agency. Id. at 68; see also Hicks, 593 F.3d at 168 (holding that “reassignment of job duties is not immediately actionable,”
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nor is the contention that defendant submitted false memoranda regarding plaintiff's work performance). For example, Plaintiff
offers no factual enhancement whatsoever to support his conclusion that he “was wrongfully excluded from routine training
as a result of the Defendants' continued unlawful conduct.” Thus unsubstantiated, Plaintiff's Title VII retaliation claim is also
dismissed on this basis.
iii. Title VII Hostile Work Environment Claim
*7 Title VII also protects employees from being subjected to a discriminatorily hostile work environment. Adams–Martin,
2012 WL 878306, at *34 (citing Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Whether
the Plaintiff's workplace is hostile under Title VII depends on the totality of the circumstances in each case; however, relevant
factors may include the frequency, severity, and effect of the discriminatory conduct. Harris, 510 U.S at 23. To prevail in a
hostile work environment claim, a plaintiff must show three elements: (1) that the plaintiff himself found the environment
hostile, (2) that the environment would have been considered hostile to a reasonable person, and (3) the employee was subjected
to the abusive environment because of his race or national origin. Id.
The Plaintiff complains that within the span of one month, he was subjected to two occasions of verbal abuse from Defendant
Velleca, including shouting, swearing, and threats to “make [Plaintiff's] life miserable.” Plaintiff also alleges that the Defendant
ordered that Plaintiff be written up without just cause, and that Defendant submitted a false report that resulted in Plaintiff's
suspension. Yet where a plaintiff's claim is based on facially race-neutral conduct, he must set forth enough evidence indicative
of discrimination to establish “a basis from which a reasonable fact-finder could infer that those incidents were infected by
discriminatory animus.” Alfano v. Costello, 294 F.3d 365, 377 (2d Cir.2002). Here, despite Plaintiff's subjective view that the
environment was abusive, Plaintiff has failed to allege facts plausibly demonstrating any kind of discriminatory abuse, let alone
that which is so pervasive or severe “that the terms and conditions of [his] employment were thereby altered.” Leibovitz v.
N.Y. City Transit Authority, 252 F.3d 179, 188 (2d Cir.2001). To be sure, “hostile work environment cases [must] exclude from
consideration personnel decisions that lack a linkage or correlation to the claimed ground of discrimination” to prevent the
federal courts from “becom [ing] a court of personnel appeals.” Alfano, 294 F.3d at 377. Thus, Plaintiff's unsubstantiated claim
of hostile work environment on the basis of his race is dismissed on this basis as well.
iv. CFEPA Claim
Furthermore, an employer violates the CFEPA if he discriminates “in terms, conditions or privileges of employment because of
the individual's race, color ... [or] national origin.” Conn. Gen.Stat. § 46a–60(a)(1). The Connecticut Supreme Court has held
that claims of discrimination and retribution under the CFEPA are analyzed under the same model of analysis used in federal
Title VII claims. Jackson v. Water Pollution Control Auth. of City of Bridgeport, 278 Conn. 692, 705–06, 900 A.2d 498 (2006).
Therefore, for the same reasons discussed above, Plaintiff's claims under Connecticut State Law must also fail in their entirety.
B. Equal Protection Claim
*8 The Plaintiff also alleges in his complaint that the government violated his right to Equal Protection under the Fourteenth
Amendment. The government violates the Equal Protection Clause where it fails to treat “similarly situated people in a like
manner .” See Heusser v. Hale, 777 F.Supp.2d 366, 382 (D.Conn.2011) (citing Harlen Assocs. v. Incorporated Vill. of Mineola,
273 F.3d 494, 499 (2d Cir.2001)). Where a plaintiff alleges that he was singled out for discriminatory treatment that was race-
neutral on its face, however, the plaintiff must show that the defendant acted with a purpose to discriminate. Hayden v. County
of Nassau, 180 F.3d 42, 50 (2d Cir.1999). That is, he must show that the defendant “selected or reaffirmed a particular course
of action at least in part ‘because of,’ not merely ‘in spite of,’ adverse effects” upon members of a protected class. Id. (quoting
Personnel Administrator v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979)).
In this case, the Plaintiff fails to allege facts demonstrative of government action that was discriminatory on its face. At the
same time, the Plaintiff also fails to create a plausible inference that Defendants acted with discriminatory purpose. Indeed,
aside from his assertion that Defendant Velleca had a history of discriminatory conduct toward minority and female employees,
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Plaintiff offers no grounds to support his assertion that the defendant “engaged in invidious discrimination” in this instance. As
discussed above, the facts set forth in the complaint demonstrate that Defendant Velleca's inappropriate conduct was motivated
by his disagreement with Plaintiff over the reorganization of the Major Crimes Unit rather than Plaintiff's race or ethnicity.
As for the Plaintiff's claims against Defendant Assistant Chief Limon (Count II), the Defendant cannot be held liable “
‘merely because he held a high position of authority,’ but can be held liable only of he was personally involved in the alleged
deprivation .” Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 127 (quoting Black v. Coughlin, 76 F.3d
72, 74 (2d Cir.1996)). While such direct involvement may in some cases be found where the defendant exhibits “deliberate
indifference” by “failing to act on information indicating that unconstitutional acts were occurring,” such will only be the
case where “the defendant was grossly negligent in supervising subordinates who committed the wrongful acts.” Id. (citing
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995)). Plaintiff has failed to supply a factual basis for so finding in this case. See
Id. at 127 (finding no “deliberate indifference” where defendant's response was not “clearly unreasonable in light of known
circumstances”). Indeed, Plaintiff merely alleges that Defendant Limon acted on false information in disciplining the Plaintiff.
Thus, Plaintiff's Equal Protection claim is dismissed as a matter of law.
C. First Amendment Retaliation Claim
*9 It is well-established that a government employee who is speaking as a citizen on matters of public concern is protected
from retaliation for his speech under the First Amendment. Garcetti v. Ceballos, 547 U.S. 410, 419, 126 S.Ct. 1951, 164 L.Ed.2d
689 (2006). However, speech by a public employee pursuant to the employee's official duties, is not protected from employer
discipline. Id. at 421. In some instances, speech may be deemed “ ‘pursuant to ‘a public employee's official job duties even
though it is not required by, or included in, the employee's job description, or in response to a request by the employer.’ “ Platt
v. Incorporated Village of Southampton, 391 Fed.Appx. 62, 64 (2d Cir.2010) (citing Weintraub v. Bd. of Educ., 593 F.3d 196,
203 (2d Cir.2010)). In any case, to survive a motion to dismiss, a plaintiff must present sufficient facts to support the plausible
inference that (1) his speech was protected, (2) the plaintiff was subjected to adverse action, and (3) the speech was the cause
of the adverse action. Scott v. Coughlin, 344 F.3d 282, 286 (2d Cir.2003).
In this case, the Plaintiff, a Detective in the Major Crimes Unit, does not have First Amendment protection for his speech where
he spoke out in protest against the manner in which the Unit was being operated. See Garcetti, 547 U.S. at 418 (holding that,
insofar as the speech “has some potential to affect the entity's operations,” the government “has broader discretion to restrict
speech”). Plaintiff alleges that he “spoke out on matters of public concern” because he was worried that the personnel transfers
would put the public at risk. In support of his allegation, he claims that he was not on the transfer list at the time of his speech,
and thus was clearly concerned with public safety rather than his own position. Even if the Court draws all reasonable inferences
from such allegations which are entitled to an assumption of truth, it is clear that Plaintiff's alleged speech was made in his
capacity as a police officer and not as a citizen on a matter of public concern. Consequently, Plaintiff's speech is not protected
as a matter of law. See Platt, 391 Fed.Appx at 64 (finding no protected speech where plaintiff raised concerns regarding the
adverse impact of an inter-department relationship on public safety because “we cannot say that a police officer speaking to a
public official about his concerns over public safety issues is speaking in his capacity as a citizen, as opposed to his capacity as a
police officer”); Carter v. Incorporated Village of Ocean Beach, 415 Fed. Appx. 290, 291 (2d Cir.2011) (“Plaintiffs' allegations
establish no more than that they reported what they believed to be misconduct by a supervisor up the chain of command—
misconduct they knew of only by virtue of their jobs as police officers and which they reported as ‘part-and-parcel of [their]
concerns about [their] ability to properly execute [their] duties.’ ”) (quoting Weintraub, 593 F.3d at 203); Pisano v. Mancone, No.
08 Civ. 1045(KMW), 2011 WL 1097554, at *13 (S.D.N.Y. Mar.18, 2011) (holding that speech regarding lack of departmental
rules or policies, that chief of police was issuing allegedly unlawful orders, that another police officer was not qualified and that
the chief of police had directed improper alteration of payroll records “concerned the internal working of the police department,
as well as issues of public safety” and that since such speech was in furtherance of the plaintiff's duties as a police sergeant it was
part and parcel of his concerns about his abilities to execute that duty and therefore not protected under the First Amendment);
Frisenda v. Incorporated Village of Malverne, 775 F.Supp.2d 486, 509 (E.D.N.Y.2011) (Fact that officer's memorandum to
police chief discussing failure by members of the department to follow procedure in responding to emergency situations was
written by the officer at his home did not “magically transform his speech as public employee into speech as private citizen,
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as would support his First Amendment retaliation claims” as the speech was “made in connection with, and during course of,
lieutenant's job duties.”).
*10 The Plaintiff's alleged speech concerning the departmental transfers and its “public safety” impact undeniably concerned
the internal workings of the police department and was clearly in furtherance of Plaintiff's duties as a Detective in that it was “part
and parcel of his concerns about his ability to properly execute” those duties. Weintraub, 593 F.3d at 203. The fact that Plaintiff
was not one of the officers on the transfer list did not magically transform his speech as a public employee into speech as private
citizen. Thus, even insofar as the Plaintiff was concerned about the adverse effects of the Unit transfers on public safety, he
expressed his concerns in the capacity of a police officer when he spoke to the Lieutenant in his office at the Lieutenant's request.
Therefore, the Plaintiff has not plausibly stated a First Amendment Retaliation claim and his claim is accordingly dismissed.
D. Substantive Due Process Claim
Additionally, the Plaintiff claims that the government deprived him of his right to substantive due process in the course of his
employment. Government conduct violates a plaintiff's Fourteenth Amendment right to substantive due process only where
it is “so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” County of Sacramento v.
Lewis, 523 U.S. 833, 847 n. 8, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). Constitutional violations do not, in and of themselves,
“shock the conscience” for the purposes of substantive due process. Velez v. Levy, 401 F.3d 75, 94 (2d Cir .2005). Therefore,
where factual allegations shock the conscience only insofar as they constitute specific constitutional violations, plaintiffs may
not seek redress under substantive due process. See Id. (dismissing substantive due process claims where allegations amounted
to First Amendment and Equal Protection violations). Consequently, a substantive due process claim will not survive a motion
to dismiss where it is either (1) subsumed by other constitutional claims, or (2) does not amount to a substantive due process
violation as a matter of law.
First, “Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort
of government behavior, ‘that Amendment ... must be the guide for analyzing’ such a claim,” and plaintiffs may not resort
to the more general alternative category of substantive due process. Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127
L.Ed.2d 114 (1994) (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Under this rule,
substantive due process claims must be dismissed where they are merely duplicative of claims explicitly protected under other
constitutional sources. See Kia P. v. McIntyre, 235 F.3d 749, 758 (2d Cir.2000) (analyzing detention claims under the Fourth
Amendment rather than substantive due process).
The Plaintiff's claim that he was wrongly retaliated against after exercising his right to free speech must be analyzed under the
First Amendment and not substantive due process. See Velez, 401 F.3d at 94 (denying to analyze plaintiff's First Amendment
claim under a substantive due process rubric where plaintiff alleged that she was removed from the school board and defamed
as a result of her speech). Moreover, the Plaintiff's claim that the government engaged in invidious discrimination against him
merely duplicates his Equal Protection claims, as the Plaintiff does not allege any egregious facts beyond those comfortably
subsumed by the alternative clause. See Hogan v. State of Conn. Judicial Branch, 220 F.Supp.2d 111, 124 (D.Conn.2002)
(finding no substantive due process claim where plaintiff claimed that he was terminated on the basis of race since “the equal
protection clause provides explicit textual protection against race-motivated state action”). For these reasons, the Plaintiff's
substantive due process claims are dismissed.
*11 The Plaintiff's substantive due process claims must also be dismissed because they do not allege facts that are so arbitrary
or egregious as to “shock the conscience” as a matter of law. See County of Sacramento, 523 U.S. at 845 (“[O]nly the most
egregious official conduct” is arbitrary or egregious as a matter of law.); see also Collins v. Harker Heights, 503 U.S. 115,129
(1992) (holding that “particularly in the area of public employment,” a claim “analogous to a fairly typical tort claim under
state law” does not amount to a substantive due process violation). While no precise test can determine whether government
conduct “shocks the conscience,” the query necessarily depends on “the state of mind of the government actor and the context
in which the action was taken.” See O'Connor v. Pierson, 426 F.3d 187, 203 (2d Cir.2005) (holding that intent to cause harm
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may in some cases constitute a violation, while “deliberate indifference” only “shocks the conscience “in situations where the
government owes a special duty of care to those in its charge”).
The Plaintiff alleges that Defendant Velleca fabricated incidents of misconduct in order to impugn the Plaintiff's reputation,
causing him to be reprimanded in writing, transferred, and suspended. Yet however wrongful such alleged conduct may be, it
does not plausibly state conduct that amounts to a substantive due process claim as a matter of law. See Hogan, 220 F.Supp.2d.
at 123 (dismissing a substantive due process claim where defendant allegedly made him a scapegoat and had him wrongfully
terminated on that basis). Nor do Plaintiff's allegations that Defendant created a hostile environment by on one occasion yelling,
swearing at, and on another occasion threatening the Plaintiff amount to a violation of substantive due process. See Richards
v. Connecticut Dept. of Corr., 349 F.Supp.2d 278, 293 (D.Conn.2004) (holding that, while “unprofessional and unto plausible
necessary,” the government-employer's conduct did not shock the conscience where defendant yelled, swore at, and berated
plaintiff, who was then placed on leave, transferred, and reprimanded in writing).
As to Defendant Limon (Count II), the Plaintiff does not allege that the Defendant was aware of Defendant Velleca's allegedly
unlawful behavior, but rather, asserts only that Limon wrongly credited Defendant Velleca's claims over the Plaintiff's. Yet even
had Limon been aware of Velleca's acts, the Defendant's alleged failure to act does not constitute a basis for the Plaintiff's claim.
See Goldfarb v. Town of W. Hartford, 474 F.Supp.2d 356, 371 (D.Conn.2007) (rejecting plaintiff's substantive due process claim
where defendant allegedly failed to respond to plaintiff's complaints or prevent further harassment to plaintiff). Indeed, while
“deliberate indifference” to a supervisee's wrongful behavior may “shock the conscience “in situations where the government
owes a special duty of care to those in its charge,” such as a government detainee, this is not such a case. O'Connor, 426 F.3d
at 203. Therefore, because the Plaintiff does not, as a matter of law, allege facts that “shock the conscience,” his substantive
due process claim is dismissed.
E. Procedural Due Process Claim
*12 Additionally, the state acts in violation of the Fourteenth Amendment when it deprives an individual of property without
due process of law. Cleveland Bd. Of Educ. V. Loudermill, 470 U.S. 532, 541, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). “In
analyzing plaintiffs' procedural due process claims, the court must first determine (1) whether plaintiffs possessed a protected
liberty or property interest, and, if so, (2) what process plaintiffs were due before they could be deprived of that interest.” Sealed
v. Sealed, 332 F.3d 51, 55 (2d Cir.2003). As to the first inquiry, depriving an individual of his livelihood may in some cases
constitute a property depravation requiring due process for the purposes of the Fourteenth Amendment. Loudermill, 470 U.S.
at 543. As to the second, “due process is flexible and calls for such procedural protections as the particular situation demands.”
Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Nevertheless, three factors may be balanced
to determine what process is due in a given situation: “ “First, the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the Government's interest.” Mathews v. Eldridge, 424 U.S. 319, 335,
96 S.Ct. 893, 47 L.Ed.2d 18 (1976).
In this case, the Plaintiff fails to adequately allege a procedural due process violation because he makes no reference to facts
providing a basis for the claim. The Plaintiff alleges that he was suspended for three days and arbitrarily subjected to punishment
without appropriate opportunity for adequate review. Yet the Plaintiff fails to elucidate his point by describing what process he
was due. See DeLoreto V. Ment, 944 F.Supp. 1023, 1034 (D.Conn.1996) (dismissing an employment depravation claim where
plaintiffs failed to present allegations as to “what procedural due process rights they [were] claiming entitlement”). Indeed,
in this case, Plaintiff does allege that he took advantage of various grievance procedures, suggesting that he was not, in fact,
deprived of adequate process as a matter of law. See Gilbert v. Homar, 520 U.S. 924, 932, 117 S.Ct. 1807, 138 L.Ed.2d 120
(1997) (holding that no pre-depravation hearing was required where an employee faces only a temporary suspension without
pay and not termination). After all, a plaintiff does not have a due process claim merely because he is unhappy with the results
of the process he is provided. See Martin v. Town of Westport, 329 F.Supp.2d 318, 335 (D.Conn.2004) (holding that adequate
process had been provided where plaintiff took advantage of collective bargaining agreement procedures after being terminated,
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and merely disagreed with the results). For the foregoing reasons, the Plaintiffs procedural due process claim is dismissed as
a matter of law.
F. Municipal Liability Claim
In regard to Count III of Plaintiff's claim, to establish municipal liability for the conduct of city employees, “a plaintiff must
show that the violation of his constitutional rights resulted from a municipal custom or policy” that caused the violation. Ricciuti
v. N.Y.C. Transit Auth., 941 F.2d 119, 122 (2d Cir.1991). In some cases, such an unlawful policy may be inferred where “the
municipality had notice of but repeatedly failed to make any meaningful investigation” into allegations that its agents had
violated constitutional rights. Id.
*13 In Count III, Plaintiff alleges that Defendant City of New Haven displayed “deliberate indifference” to the violation of
Plaintiff's constitutional rights. Such unlawful indifference, Plaintiff claims, evinces “a municipal policy or custom” that makes
Defendant City of New Haven liable in this case. Plaintiff fails, however, to provide a factual basis for his claim. The fact that
Defendant City of New Haven “acknowledged that ‘some of Lt. Velleca's actions were inappropriate for a supervisor’ “ and
failed to act does not provide a plausible inference that Defendant deliberately and repeatedly ignored allegations of conduct
that plausibly amounted to a constitutional violation. Nor does the threadbare claim demonstrate that “through its deliberate
conduct, the municipality was the ‘moving force’ behind the injury alleged.” Bd. of County Com'rs of Bryan County, Okl. v.
Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997). Plaintiff's allegations against the City are replete with
conclusions devoid of any factual enhancement that would render such conclusions plausible under Iqbal. Absent any factual
allegations supporting the plausible inference of “a direct causal link between the municipal action and the deprivation of federal
rights,” the Plaintiff's claim must be dismissed.
G. Intentional Infliction of Emotional Distress Claim
Liability for intentional infliction of emotional distress depends on the plaintiff's ability to establish four elements: (1) that the
defendant intended to inflict emotional distress, or knew or should have known that emotional distress would result from his
conduct; (2) that the defendant's conduct was extreme and outrageous; (3) that the defendant's conduct caused the plaintiff's
distress; and (4) that the plaintiff's distress was severe. Miner v. Town of Cheshire, 126 F.Supp.2d 184, 194 (D.Conn.2000)
(quoting Petyan v. Ellis, 200 Conn. 243, 253, 510 A.2d 1337 (1986)). To constitute “extreme and outrageous conduct,” the
action must be “so extreme and outrageous that it goes beyond all possible bounds of decency, is regarded as atrocious, is utterly
intolerable in a civilized society,” and causes “mental distress of a very serious kind.” Id.
In Count I, Plaintiff claims that Defendant Velleca verbally threatened him, making him fear for his safety both at work and
at home. He also alleges that Defendant issued false negative reports about Plaintiff and caused him to be unfairly disciplined.
Plaintiff asserts that, as a result of the psychological trauma caused by Defendant, he was forced to leave work and take a sick
day. Yet however ill-founded and improper Defendant's alleged actions may have been, they do not, as a matter of law, arise to
level of egregious conduct required to substantiate a claim of intentional infliction of emotional distress. See Miner v. Town of
Cheshire, 126 F.Supp.2d 184, 195 (D.Conn.2000) (holding that “insults, verbal taunts, threats, indignities, annoyances, petty
oppressions or conduct that displays bad manners or results in hurt feelings do not support a claim for intentional infliction
of emotional distress”); Armstrong v. Chrysler Financial Corp. and Roger Pinneault, No. 3:97CV1557, 1998 WL 342045, at
*5 (D.Conn. May 14, 1998) (“Mere insults, indignities, annoyances, or conduct that displays bad manners or results in hurt
feelings, is insufficient” and therefore holding that Plaintiff failed to plausibly state claim for intentional infliction of emotional
distress where employer criticized, insulted, demeaned, and embarrassed plaintiff on a daily basis). Indeed, even unfounded
discipline does not amount to extreme and outrageous behavior when conducted in an employment setting. See Hill v. Pinkerton
Sec. & Investigation Services, Inc., 977 F.Supp. 148, 160 (D.Conn.1997) (finding no claim where plaintiff was disciplined,
reprimanded, and transferred); see also Barbuto v. William Backus Hosp., 1995 WL 235068, *8 (Conn.Super.) (April 13, 1995,
Hendel, J.) (dismissing a claim where plaintiff suffered a two day suspension).
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*14 Additionally, while Plaintiff alleges that Defendant Limon ignored his complaints, failure to prevent another employee
from harassing a complainant cannot properly be considered intentional infliction of emotional distress as a matter of law. See
Abate v. Circuit–Wise, Inc., 130 F.Supp.2d 341, 348 (D.Conn.2001) (finding that failure to prevent supervisor from sexually
harassing plaintiff-employee was not extreme and outrageous conduct). Furthermore, while the Plaintiff alleges that Defendant
Limon participated in transferring and suspending the Plaintiff for fabricated reasons, as discussed above, unfair discipline, even
to the extent of termination of employment, does not amount to extreme and outrageous conduct. See Venterina v. Cummings
& Lockwood, 117 F.Supp.2d 114, 120 (D.Conn.1999) (holding that false accusations and wrongful termination is insufficient
to sustain a claim). Thus, unsubstantiated, Plaintiff's Count IV claims against Defendant Velleca and Defendant Limon are
dismissed.
Lastly, the City correctly asserts that under Connecticut law, a municipality cannot be liable for the intentional and/or malicious
conduct of its employees or agents. Indeed, the Connecticut Supreme Court has held that under Conn. Gen.Stat. § 52–55n, a
municipality could not be held liable for the intentional infliction of emotional distress by one its employees. Pane v. City of
Danbury, 267 Conn. 669, 686, 841 A.2d 684 (2004).
Conclusion
For the foregoing reasons, Defendants' motion to dismiss Plaintiff's complaint in its entirety is GRANTED. The Clerk is directed
to close the case.
IT IS SO ORDERED.
All Citations
Not Reported in F.Supp.2d, 2012 WL 4445475
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2020 WL 550701
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Rayvon RUTHERFORD, Plaintiff,
v.
CORRECT CARE SOLUTIONS, LLC; New York Correct Care Solutions Medical Services, P.C.;
Doctor Raul Ulloa; Westchester County; Assistant Warden Francis Delgrosso; Assistant Warden
Lafonda Spaulding; Captain Christopher Roberts; Sgt. Hector Lopez #137, Sgt. Randazzo #214;
Captain Thomlin; C.O. Herrington #1321; and Alexis Gendell, Administrator for CCS, Defendants.
18 CV 12049 (VB)
|
Signed February 3, 2020
|
Filed 02/04/2020
Attorneys and Law Firms
Rayvon Rutherford, Fishkill, NY, pro se.
Loren Zeitler, Westchester County Dep't of Law, White Plains, NY, for Defendants.
OPINION AND ORDER
Briccetti, United States District Judge:
*1 Plaintiff Rayvon Rutherford, proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983
against defendants Correct Care Solutions, LLC, and New York Correct Care Solutions Medical Services, P.C. (collectively,
“CCS”); CCS Medical Supervisor Dr. Raul Ulloa and CCS Administrator Dr. Alexis Gendell (together with CCS, the “medical
defendants”); Westchester County (the “County”); and Assistant Warden (“A.W.”) Francis Delgrosso; A.W. Lafonda Spaulding;
Captain (“Capt.”) Christopher Roberts; Sergeant (“Sgt.”) Hector Lopez; Sgt. Randazzo; Capt. Chris Thomalen (sued herein as
Capt. Thomlin); and Correction Officer (“C.O.”) Harrington (sued herein as C.O. Herrington) (collectively and together with
the County, the “County Defendants”).
Now pending are: (i) the medical defendants’ motion to dismiss plaintiff's third amended complaint (“TAC”) (Doc. #45); (ii)
the County's motion to dismiss, to the extent plaintiff asserts any medical-related claims against the County (Doc. # 57); and
(iii) the County Defendants’ motion to dismiss all other claims (Doc. #61).
For the following reasons, the medical defendants’ motion (Doc. #45) is GRANTED, the County's motion (Doc. #57) is
GRANTED, and the County Defendants’ motion (Doc. #61) is GRANTED IN PART and DENIED IN PART.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
BACKGROUND
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For the purpose of ruling on the motion to dismiss, the Court accepts as true all well-pleaded factual allegations in the TAC and
draws all reasonable inferences in plaintiff's favor, as summarized below. 1
At all times relevant to the TAC, plaintiff was confined to the Westchester County Jail (“WCJ”).
I. Plaintiff's Medical Condition
At some time prior to his confinement at WCJ, plaintiff had surgery to correct severed flexor tendons in his right hand. He
alleges the surgery was completed in part, and that he required a second operation to fully correct the severed tendons.
In January 2018, plaintiff complained to CCS medical staff that he was experiencing pain in his right hand, which prevented him
from performing regular daily activities. Specifically, plaintiff alleges the pain prevented him from gripping things properly,
washing, brushing his teeth, writing, eating, exercising, and dressing. CCS staff examined him numerous times and provided
medication to manage the pain.
Around June 2018, plaintiff complained to CCS staff that he was experiencing pain in both wrists and hands. Plaintiff also
complained the mobility in his right hand had become worse. CCS staff performed X-rays to assess plaintiff's medical needs,
continued to provide pain medication, and also prescribed physical therapy treatment.
According to plaintiff, he filed more than twenty sick call requests. He further alleges CCS staff, including his physical therapist,
suggested that he be seen by an orthopedic hand specialist, and Dr. Ulloa declined to authorize such referral because CCS doesn't
“take money out of the budget for preexisting conditions, and ... plaintiff should wait until he was transferred or went home so
his next facility or insurance can pay for his surgical procedure.” (Doc. #25 at 10). 2
*2 Dissatisfied with his ongoing medical treatment, plaintiff submitted multiple medical complaints to CCS Administrator Dr.
Gendell between September and December 2018. Plaintiff alleges Dr. Gendell reviewed plaintiff's complaints and concluded
plaintiff was receiving adequate medical attention, even though Dr. Gendell never personally examined plaintiff.
II. Plaintiff's Grievance Submissions
Plaintiff filed multiple grievances pertaining to the quality of medical services he was receiving at WCJ. These grievances were
denied by A.W. Spaulding, A.W. Delgrosso, and Sgt. Lopez. According to plaintiff, defendants conspired to ignore plaintiff's
grievances to “creat[e] the [illusion] that plaintiff did not have a serious medical condition.” (Doc. #25 at 12).
In addition, plaintiff filed several grievances respecting the County Defendants’ conduct. Specifically, plaintiff alleges Sgt.
Lopez physically threatened and intimidated plaintiff in efforts to prevent plaintiff from filing grievances. According to plaintiff,
Sgt. Lopez threatened to have plaintiff confined to keep-lock disciplinary housing if plaintiff continued to complain about Sgt.
Lopez's conduct. Plaintiff alleges Sgt. Lopez repeatedly retaliated against and threatened him because plaintiff named Sgt.
Lopez in a separate lawsuit.
Plaintiff alleges his numerous grievances respecting Sgt. Lopez's conduct were denied by A.W. Spaulding, Capt. Roberts, and
non-party Sgt. Middleton. Plaintiff alleges A.W. Spaulding and Capt. Roberts denied the grievances without investigating them.
Moreover, plaintiff alleges Sgt. Lopez violated WCJ grievance procedure on January 8, 2019, when Sgt. Lopez delivered to
plaintiff Capt. Roberts's denial of plaintiff's grievance respecting Sgt. Lopez. According to plaintiff, it is a violation of WCJ
grievance procedure for a complained-of WCJ employee to deliver answers to grievances regarding him or herself.
Plaintiff submitted a grievance to Sgt. Randazzo respecting Sgt. Lopez's alleged grievance procedure violation. According to
plaintiff, Sgt. Randazzo gave plaintiff's grievance to Sgt. Middleton for review, and, along with Capt. Roberts, submitted a
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false witness statement regarding plaintiff's January 8, 2019, interaction with Sgt. Lopez. Plaintiff further alleges Sgt. Randazzo
failed to investigate the issue. Sgt. Middleton denied the grievance.
III. Keep-Lock Housing
On November 8, 2018, C.O. Harrington allegedly filed two false reports against plaintiff. The first report states plaintiff refused
C.O. Harrington's order to report to his cell for block clean-up. According to the report, plaintiff told C.O. Harrington: “We
don't lock-in, stop starting shit, I will smack the shit out of you.” (Doc. #29 at 32). In the second report, C.O. Harrington
states plaintiff interfered with WCJ staff's performance of duties, and failed to attend or participate in an assigned education,
vocation, or rehabilitation program. On November 9, 2018, Sgt. Randazzo reviewed the reports and confined plaintiff to keep-
lock housing for eight days.
Plaintiff further alleges he was again placed in disciplinary housing, from February 1 through February 6, 2019. He also alleges
that on March 4, 2019, he was moved to new quarters in the “old jail” and placed in an environment with inmates with high
security classifications. (Doc. #25 at 20). According to plaintiff, Capt. Thomalen ordered him placed in disciplinary housing
and transferred to the old jail because he had filed grievances against Sgt. Lopez and a non-party, Sgt. Brown. According to
plaintiff, Capt. Thomalen stated: “How many grievances did you write, and [you're] suing my friend Sgt. Lopez, [you're] going
to a place where people like to write grievances and file lawsuits.” (Doc. #25 at 21).
IV. Damage to Mail and Lost Packages
*3 Plaintiff alleges that, in December 2018, “to further inflict harm against him,” unnamed WCJ mail room staff damaged
two greeting cards sent to plaintiff by his family. (Doc. #25 at 21). Plaintiff submitted grievances respecting the damaged cards.
A.W. Spaulding and non-party A.W. Vollmer answered plaintiff's grievances, noting the greeting cards did not comply with
WCJ inmate mail restrictions as they contained glued pages, and mail room staff should not have accepted them. However, the
staff separated the glued portions of the cards to check for contraband and, after doing so, gave the cards to plaintiff.
Plaintiff further alleges that in March 2019, to retaliate against plaintiff for filing grievances, WCJ staff refused to provide
plaintiff two mailed packages containing books. After plaintiff grieved the issue, non-party Sgt. Allen Weston informed plaintiff
that inmates are allowed up to five books, and plaintiff needed to dispose of some old books to receive the two new books that
were mailed to him. Unsatisfied, plaintiff filed another grievance. This time, non-party Sgt. Sorrento answered the grievance
and informed plaintiff the packages had been misplaced. Sgt. Sorrento instructed plaintiff to submit a lost/stolen property form
for the cost of the books.
V. Plaintiff's Other Pending Lawsuit
On May 31, 2018—seven months before plaintiff commenced the instant action—plaintiff filed a separate lawsuit in this district,
Rutherford v. Westchester County, 18 Civ. 4872 (KMK) (“Rutherford I”). In Rutherford I, plaintiff asserted claims respecting
the quality and handling of food at WCJ. He also asserted claims against Sgt. Lopez for alleged non-compliance with WCJ
grievance procedures, retaliation against plaintiff for filing grievances, and attempts to prevent plaintiff from filing grievances.
Plaintiff further alleged Sgt. Lopez threatened to file disciplinary reports against plaintiff and have him relocated to disciplinary
housing if plaintiff kept filing grievances against him.
In an Opinion & Order dated January 28, 2020, Judge Karas granted the defendants’ motion to dismiss the operative second
amended complaint in Rutherford I and dismissed plaintiff's claims without prejudice. Judge Karas also granted plaintiff leave
to replead his claims and file a third amended complaint.
DISCUSSION
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I. Legal Standard
In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the “two-pronged
approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). 3 First, a plaintiff's legal conclusions
and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the
assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150,
161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679.
To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Ashcroft v. Iqbal,
556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible “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. “The 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. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556).
*4 In considering a motion to dismiss, “a district court may consider the facts alleged in the complaint, documents attached
to the complaint as exhibits, and documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C.,
622 F.3d 104, 111 (2d Cir. 2010).
The Court must liberally construe submissions of pro se litigants and interpret them “to raise the strongest arguments that they
suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam). Applying the pleading rules
permissively is particularly appropriate when, as here, a pro se plaintiff alleges civil rights violations. See Sealed Plaintiff v.
Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). “Even in a pro se case, however, ... threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do not suffice.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.
2010). Nor may the Court “invent factual allegations” a plaintiff has not pleaded. Id.
II. Duplicative Claims
The County Defendants argue plaintiff's claims against Sgt. Lopez, Capt. Roberts, Sgt. Randazzo, and C.O. Harrington are
duplicative of those asserted by plaintiff in Rutherford I.
The Court agrees as to Sgt. Lopez, but not as to Capt. Roberts, Sgt. Randazzo, and C.O. Harrington.
A plaintiff has “no right to maintain two actions on the same subject in the same court, against the same defendant at the same
time.” Curtis v. Citibank, N.A., 226 F.3d 133, 139 (2d Cir. 2000). “When confronted with two actions raising similar claims, and
a request that the later action be dismissed, ... a court must first resolve whether the actions are in fact duplicative.” Naula v. Rite
Aid of N.Y., 2010 WL 2399364, at *2 (S.D.N.Y. Mar. 23, 2010). 4 “The complex problems that can arise from multiple federal
filings do not lend themselves to a rigid test, but require instead that the district court consider the equities of the situation when
exercising its discretion.” Curtis v. Citibank, N.A., 226 F.3d at 138.
In Rutherford I, plaintiff alleged Sgt. Lopez and another officer, Sgt. Brown, retaliated against plaintiff for filing grievances
and prevented plaintiff from filing additional grievances. There, plaintiff also alleged Sgt. Lopez threatened to file disciplinary
reports and have plaintiff relocated to disciplinary housing. These are the same allegations asserted and claims raised against
Sgt. Lopez in the instant action. Thus, plaintiff's claims against Sgt. Lopez in this action are duplicative of those asserted in
Rutherford I.
However, Capt. Roberts, Sgt. Randazzo, and C.O. Harrington are not named as defendants in Rutherford I, and the operative
complaint in that case does not contain claims against them. Rather, in Rutherford I, plaintiff briefly mentioned in a November
28, 2018, letter to Judge Karas, general allegations concerning retaliation and his confinement in keep-lock housing. Judge Karas
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ordered the Rutherford I defendants to respond to plaintiff's letter. Thereafter, plaintiff submitted an affidavit, dated January 24,
2019, containing the same general allegations, and again Judge Karas instructed the Rutherford I defendants to respond.
*5 Judge Karas did not construe plaintiff's November 28 letter or January 24 affidavit as amending his operative complaint
to assert claims against Capt. Roberts, Sgt. Randazzo, or C.O. Harrington. Indeed, in his January 28, 2020, Opinion and Order,
Judge Karas declined to consider the allegations in those documents because “they are not discussed in [plaintiff's second
amended complaint].” Rutherford v. Westchester County, 2020 WL 433841, at *3 n.3 (S.D.N.Y. Jan. 28, 2020). Thus, plaintiff's
instant claims against Capt. Roberts, Sgt. Randazzo, and C.O. Harrington are not duplicative of claims asserted in Rutherford I.
III. Deliberate Indifference to Serious Medical Needs
The medical defendants argue plaintiff fails to state a claim for deliberate indifference to his medical needs.
As an initial matter, it is unclear from the amended complaint whether plaintiff was a pretrial detainee or a convicted prisoner
during times relevant to plaintiff's allegations, and therefore whether to analyze plaintiff's deliberate indifference claim under
the Eighth or Fourteenth Amendment. See Darnell v. Pinero, 849 F.3d 17, 29 (2d Cir. 2017). Indeed, plaintiff indicated in his
original complaint that he was a convicted and sentenced prisoner (Doc. #2 at 2), but indicates in his third amended complaint
that he was a pretrial detainee (Doc. #25 at 2). The medical defendants believe plaintiff was sentenced on March 25, 2018,
and thus became a convicted prisoner prior to the incidents of which he complains. (Doc. #53). The County Defendants are
mum on the matter.
In light of these inconsistencies, the Court assesses plaintiff's deliberate indifference claim under the more lenient standards
of the Fourteenth Amendment, and concludes, even under this lesser standard, that plaintiff has failed to state a deliberate
indifference claim.
A. Standard of Review
“A pretrial detainee may establish a § 1983 claim for allegedly unconstitutional conditions of confinement by showing that
the officers acted with deliberate indifference to the challenged conditions.” Darnell v. Pineiro, 849 F.3d at 29. To state such a
claim, plaintiff's allegations must satisfy two prongs: an objective prong and a mens rea prong. Namely, plaintiff must plausibly
allege “that the challenged conditions were sufficiently serious,” and defendants “acted with at least deliberate indifference to
the challenged conditions.” Id.
To plead the objective prong, a pretrial detainee must plausibly allege the challenged conditions, “either alone or in combination,
pose[d] an unreasonable risk of serious damage to his health.” Darnell v. Pineiro, 849 F.3d at 30. “There is no ‘static test’
to determine whether a deprivation is sufficiently serious; instead, ‘the conditions themselves must be evaluated in light of
contemporary standards of decency.’ ” Id. at 29.
In the context of medical care, two inquiries determine whether a deprivation is objectively serious. “The first inquiry is whether
the prisoner was actually deprived of adequate medical care.” Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). Because
prison officials’ “duty is only to provide reasonable care,” prison officials are liable only if they fail “ ‘to take reasonable
measures’ in response to a medical condition.” Id. at 279–80 (quoting Farmer v. Brennan, 511 U.S. 825, 827 (1994)).
The second inquiry is “whether the inadequacy in medical care is sufficiently serious.” Salahuddin v. Goord, 467 F.3d at 280.
This question “requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has
caused or will likely cause the prisoner.” Id. (citing Helling v. McKinney, 509 U.S. 25, 32–33 (1993)). If the allegedly offending
conduct “is a failure to provide any treatment for an inmate's medical condition, courts examine whether the inmate's medical
condition is sufficiently serious.” Id. Relevant factors in determining “the seriousness of the medical condition include whether
‘a reasonable doctor or patient would find [it] important and worthy of comment,’ whether the condition ‘significantly affects
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an individual's daily activities,’ and whether it causes ‘chronic and substantial pain.’ ” Id. (quoting Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir. 1998)).
*6 If the offending conduct is the medical treatment itself, however, “the seriousness inquiry is narrower.” Salahuddin v.
Goord, 437 F.3d at 280. When “the prisoner is receiving appropriate on-going treatment for his condition [and] brings a ... denial
of medical care claim based on a temporary delay or interruption in treatment,” courts look to “the severity of the temporary
deprivation alleged by the prisoner,” not “the severity of the prisoner's underlying medical condition.” Smith v. Carpenter, 316
F.3d 178, 186 (2d Cir. 2003). To qualify as a severe temporary deprivation, “a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs.” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).
To plead the mens rea prong, a pretrial detainee must plausibly allege “that the defendant-official acted intentionally ..., or
recklessly failed to act with reasonable care to mitigate the risk that the condition posed ... even though the defendant-official
knew, or should have known,” of the risk. Darnell v. Pineiro, 849 F.3d at 35. The Fourteenth Amendment's mens rea prong
“is defined objectively” and “can be violated when an official does not have subjective awareness that the official's acts (or
omissions) have subjected the pretrial detainee to a substantial risk of harm.” Id.
“[D]istinguishing between negligent and reckless medical care is a difficult task, especially at the motion-to-dismiss stage where
courts lack the benefit of expert opinion.” Zhang v. City of New York, 2018 WL 3187343, at *8 (S.D.N.Y. June 28, 2018)
(quoting Richardson v. Corr. Med. Care, Inc., 2018 WL 1580316, at *6 (N.D.N.Y. Mar. 28, 2018)). Courts often look to the
“degree of risk associated with the negligent treatment” and have found the mens rea prong satisfied when a plaintiff did not
receive treatment for a documented condition or complaint. See id.
“It is well-established that mere disagreement over the proper treatment does not create a constitutional claim. So long as the
treatment given is adequate, the fact that a prisoner might prefer a different treatment does not give rise to” a constitutional
violation. Chance v. Armstrong, 143 F.3d at 703. “Thus, disagreements over medications, diagnostic techniques (e.g., the need
for X-rays), forms of treatment, or the need for specialists or the timing of their intervention, are not adequate grounds for a
Section 1983 claim.” Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp. 2d 303, 312 (S.D.N.Y. 2001).
B. Application
First, plaintiff fails to allege any facts suggesting Dr. Ulloa or Dr. Gendell deprived plaintiff of adequate medical care. Plaintiff's
allegations that Dr. Ulloa ignored CCS staff suggestions that plaintiff be referred to an orthopedic specialist are entirely
conclusory. Moreover, despite Dr. Ulloa's alleged remarks to plaintiff that CCS does not utilize its resources to treat preexisting
conditions, according to the TAC, CCS provided continuous treatment to plaintiff for his hand and wrist pain.
As for Dr. Gendell, according to the TAC, upon receipt of plaintiff's medical complaints, he reviewed plaintiff's treatment history
and concluded plaintiff was receiving adequate care. Although Dr. Gendell did not physically examine plaintiff before making
this determination, this fact hardly suggests plaintiff was deprived of adequate treatment by Dr. Ulloa, Dr. Gendell, or other
CCS staff.
And even assuming the truth of plaintiff's conclusory assertions, they amount only to mere disagreement over the proper
treatment of his condition. Indeed, plaintiff's allegations demonstrate his hand and wrist pain was continuously treated with
non-surgical procedures, including medication management and physical therapy. CCS staff took X-rays on two occasions to
assess plaintiff's complaints and determine an adequate course of treatment. And on numerous occasions, CCS staff assessed
plaintiff's hands for numbness, swelling, and range of motion. Indeed, during at least one medical examination, plaintiff reported
no pain symptoms.
*7 Accordingly, plaintiff's allegations do not satisfy the objective component of a deliberate indifference to serious medical
needs claim.
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Second, plaintiff's allegations respecting Drs. Ulloa and Gendell are insufficient to satisfy the mens rea component. Specifically,
plaintiff's allegations fail to suggest Drs. Ulloa and Gendell consciously or recklessly disregarded a substantial risk of serious
harm to plaintiff or failed to act with reasonable care to mitigate a risk of serious harm. In other words, plaintiff's allegations
are conclusory and devoid of any facts suggesting Drs. Ulloa and Gendell failed to take sufficient action despite inferring or
recklessly disregarding a substantial risk of serious harm. To the contrary, according to the TAC, plaintiff received continuous
treatment for his alleged pain and condition. His complaints and condition were assessed numerous times. In short, plaintiff's
own allegations suggest defendants attempted to treat his condition with reasonable care.
Accordingly, plaintiff's deliberate indifference to serious medical needs claim must be dismissed.
IV. Retaliation Claims
The County Defendants argue plaintiff fails to state a First Amendment retaliation claim.
The Court agrees with the County Defendants except as to plaintiff's claim against Capt. Thomalen.
To adequately plead a First Amendment retaliation claim, a plaintiff must plausibly allege (i) he engaged in constitutionally
protected speech or conduct; (ii) a defendant took adverse action against him; and (iii) the protected speech and adverse action
are causally connected. Dolan v. Connolly, 794 F.3d 290, 294 (2d Cir. 2015). “Only retaliatory conduct that would deter a
similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action
for a claim of retaliation.” Dawes v. Walker, 239 F.3d 489, 493 (2d Cir. 2001), overruled on other grounds by Swierkiewicz
v. Sorema N.A., 534 U.S. 506, 508 (2002).
Courts “approach prisoner retaliation claims with skepticism and particular care, because virtually any adverse action taken
against a prisoner by a prison official—even those otherwise not rising to the level of a constitutional violation—can be
characterized as a constitutionally proscribed retaliatory act.” Dolan v. Connolly, 794 F.3d at 295. Accordingly, an inmate
pursuing a retaliation claim must not rest on “wholly conclusory” allegations, but rather must allege “specific and detailed”
supporting facts. Id.
“It is well-established that ‘retaliation against a prisoner for pursuing a grievance violates the right to petition government for
the redress of grievances’ and is therefore actionable under Section 1983.” Edwards v. Horn, 2012 WL 760172, at *14 (S.D.N.Y.
Mar. 8, 2012) (quoting Graham v. Henderson, 89 F.3d 75, 80 (2d Cir. 1996)) (adopting report and recommendation).
Liberally construed, plaintiff's TAC states a First Amendment retaliation claim against Capt. Thomalen. According to plaintiff,
Capt. Thomalen placed plaintiff in keep-lock housing because plaintiff filed grievances against Sgt. Lopez. Plaintiff alleges
Capt. Thomalen remarked: “How many grievances did you write, and [you're] suing my friend Sgt. Lopez, [you're] going to a
place where people like to write grievances and file lawsuits.” (Doc. #25 at 21).
*8 Taken as true, these allegations suggest Capt. Thomalen took adverse action against plaintiff on account of protected speech.
In addition, the County Defendants’ submissions do not explain why plaintiff was placed in keep-lock housing for six days,
beginning February 1, 2019.
To the extent the County Defendants contend plaintiff's claim against Capt. Thomalen should be dismissed on qualified immunity
grounds, the Court is not persuaded. First, retaliation against a inmate for pursuing a grievance clearly is actionable under
Section 1983. See Edwards v. Horn, 2012 WL 760172, at *14. Second, taking plaintiff's allegations as true, it is not objectively
reasonable for an officer to confine a inmate to keep-lock housing to punish or deter grievance filings or lawsuits. Accordingly,
plaintiff's First Amendment retaliation claim against Capt. Thomalen shall proceed.
However, plaintiff does not allege facts suggesting any other County Defendant took adverse action against him on account of
his grievance filings or his filing of Rutherford I.
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First, documents attached to the TAC indicate C.O. Harrington issued two disciplinary reports because plaintiff failed to follow
his orders. Further, plaintiff's allegations regarding C.O. Harrington's conduct are entirely conclusory and do not otherwise
support an inference of retaliation.
Second, plaintiff fails to allege Sgt. Randazzo's order to confine plaintiff to keep-lock housing was retaliatory. Simply, the TAC
does not sufficiently allege Sgt. Randazzo did so in response to plaintiff having filed grievances or a prior lawsuit against any
of the County Defendants. To the contrary, documents provided by plaintiff suggest Sgt. Randazzo ordered plaintiff to keep-
lock housing because plaintiff failed to obey C.O. Harrington's orders.
Third, the fact that A.W. Spaulding, A.W. Delgrosso, and Sgt. Lopez each denied plaintiff's grievances contesting his medical
care is insufficient to suggest retaliatory conduct. Moreover, as noted above, plaintiff's own allegations and submitted documents
reflect plaintiff received continuous care for his medical condition.
Fourth, plaintiff does not allege facts sufficient to state a retaliation claim against Capt. Roberts. Plaintiff's allegation that Capt.
Roberts filed a false report regarding an interaction between plaintiff and Sgt. Lopez is conclusory, and plaintiff fails to plead
any facts suggesting Capt. Roberts's actions were retaliatory.
And fifth, plaintiff's allegations of retaliation respecting damage to or loss of his mail are entirely conclusory and must be
dismissed.
Accordingly, plaintiff's First Amendment retaliation claim against Capt. Thomalen will proceed, but his retaliation claim against
all other defendants must be dismissed.
V. Due Process Claim
Plaintiff fails to state a due process claim regarding his keep-lock confinement or transfer to quarters in the old jail.
To establish a violation of due process rights, a plaintiff must show “(1) that he possessed a liberty interest and (2) that the
defendant(s) deprived him of that interest as a result of insufficient process.” Giano v. Selsky, 238 F.3d 223, 225 (2d Cir. 2001).
“A prisoner's liberty interest is implicated by prison discipline, such as [keep-lock] confinement, only if the discipline imposes
[an] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Palmer v. Richards,
364 F.3d 60, 64 (2d Cir. 2004). The same standard applies for pretrial detainees. See Latona v. Chautauqua Cty. Jail, 2004 WL
2457797, at *5 (W.D.N.Y. Nov. 2, 2004). Although there is no bright-line rule for establishing when keep-lock confinement
rises to the level of a constitutional violation, courts consider both the duration and conditions of confinement. See Palmer v.
Richards, 364 F.3d at 64.
*9 In assessing the duration prong of the analysis, “restrictive confinements of less than 101 days do not generally raise a
liberty interest warranting due process protection, and thus require proof of conditions more onerous than usual.” Davis v.
Barrett, 576 F.3d 129, 133 (2d Cir. 2009).
Here, plaintiff alleges he was placed in keep-lock housing on two occasions—one time for eight days, and a second time for six
days. He further states he was moved to new quarters, “in a hostile environment with inmates with a high security classification,”
and as a result his “safety was at risk.” (Doc. #25 at 20).
First, plaintiff fails to allege he was placed in keep-lock housing for an atypical amount of time. Second, he fails to allege
facts sufficient to suggest the conditions of his temporary keep-lock confinement were more onerous or severe than usual. C.f.
Zappulla v. Fischer, 2013 WL 1387033, at *7–8 (S.D.N.Y. Apr. 5, 2013) (finding plaintiff's allegations that he was confined
to keep-lock housing for thirty-one days, with atypically harsh conditions, insufficient to state a due process claim). Third,
because plaintiff does not have a protected liberty interest in his housing assignment, Cooper v. City of New York, 2014 WL
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5315074, at *4 (S.D.N.Y. Oct. 17, 2014), he fails to allege facts suggesting an actionable due process claim with respect to
his transfer to the old jail.
For these reasons, plaintiff's due process claim must be dismissed.
VI. Grievance Procedure Claim
The County Defendants argue plaintiff's claims respecting violations of WCJ grievance procedure should be dismissed because
the Constitution does not guarantee access to an inmate grievance system.
The Court agrees.
“[I]nmate grievance procedures are not required by the Constitution and therefore a violation of such procedures does not give
rise to a claim under § 1983.” Cancel v. Goord, 2001 WL 303713, at *3 (S.D.N.Y. Mar. 29, 2001). “Indeed, any claim that
plaintiff[ ] [was] deprived of [his] right to petition the government for redress is belied by the fact of [his] bringing this lawsuit.”
Alvarado v. Westchester County, 22 F. Supp. 3d 208, 214 (S.D.N.Y. 2014).
Accordingly, to the extent plaintiff alleges the County Defendants violated WCJ grievance procedure in derogation of plaintiff's
constitutional rights, such claim is dismissed.
VII. Conspiracy Claim
Plaintiff fails to allege a conspiracy claim against any defendant.
To survive a motion to dismiss a Section 1983 conspiracy claim, a plaintiff must allege (i) “an agreement between two or
more state actors or between a state actor and a private entity”; (ii) “to act in concert to inflict an unconstitutional injury”;
and (iii) “an overt act done in furtherance of that goal[,] causing damages.” Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir.
1999). “[A]lthough “[a] plaintiff is not required to list the place and date of defendants[’] meetings and the summary of their
conversations when he pleads conspiracy, ... the pleadings must present facts tending to show agreement and concerted action.”
Concepcion v. City of New York, 2008 WL 2020363, at *3 (S.D.N.Y. May 7, 2008). “[C]onclusory allegations of a § 1983
conspiracy are insufficient.” Pangburn v. Culbertson, 200 F.3d at 72.
Liberally construed, plaintiff's TAC does not contain any plausible allegations that any defendant conspired to violate plaintiff's
constitutional rights. Thus, the claim must be dismissed.
VIII. Monell Claims
*10 The County and CCS argue plaintiff fails to state claims against them pursuant to Monell v. Department of Social Services,
436 U.S. 658 (1978).
The Court agrees.
Under Monell, a municipality is liable under Section 1983 only “when execution of a government's policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the [plaintiff's]
injury.” Monell v. Dep't of Soc. Servs., 436 U.S. at 694. Thus, to assert a Section 1983 claim against the County, plaintiff must
allege the existence of an official policy or custom that caused injury and a direct causal connection between that policy or
custom and the deprivation of a constitutional right. See Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012).
A plaintiff may satisfy the “policy or custom” requirement by alleging one of the following: (i) “a formal policy officially
endorsed by the municipality”; (ii) “actions taken by government officials responsible for establishing the municipal policies
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that caused the particular deprivation in question”; (iii) “a practice so consistent and widespread that, although not expressly
authorized, constitutes a custom or usage of which a supervising policy-maker must have been aware”; or (iv) “a failure
by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate
indifference to the rights of those who come into contact with the municipal employees.” Brandon v. City of New York, 705
F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010).
“While Monell claims are not subject to a ‘heightened’ pleading standard beyond that defined in Rule 8(a)(2), ... such claims
nevertheless must meet the plausibility requirements of [Bell Atlantic Corp. v. Twombly, 550 U.S. at 572], and [Ashcroft v.
Iqbal, 556 U.S. at 678].” Guzman v. United States, 2013 WL 5018553, at *4 (S.D.N.Y. Sept. 13, 2013) (citing Leatherman v.
Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)). “In other words, boilerplate allegations will
not suffice.” Id. at *3. Thus, allegations that a defendant “acted pursuant to a policy, without any facts suggesting the policy's
existence, are plainly insufficient.” Missel v. County of Monroe, 351 F. App'x 543, 545–46 (2d Cir. 2009) (summary order).
Moreover, to rely on lawsuits in alleging a municipal policy or custom, a plaintiff must provide factual details regarding same.
See Rivera v. Westchester County, 2019 WL 3958425, at *5 (S.D.N.Y. Aug. 22, 2019).
Here, plaintiff has not adequately pleaded an underlying deliberate indifference to serious medical needs claim, a due process
claim, or a constitutional violation regarding his grievance submissions. Accordingly, his Monell claims against CCS and the
County are dismissed inasmuch as such claims seek to hold CCS and the County liable for Fourteenth Amendment deliberate
indifference or due process violations, or violations regarding inmate grievance procedure. See Segal v. City of New York,
459 F.3d 207, 219 (2d Cir. 2006) (district court “was entirely correct in declining to address a Monell claim after finding no
underlying constitutional violation).
*11 In addition, plaintiff's allegations fail to suggest an unconstitutional policy or custom of retaliation that resulted in his
keep-lock confinement or transfer to new detention quarters. Plaintiff lists six cases in his TAC that he alleges suggest “this
is one of many instances of unconstitutional conduct by ... security staff” at WCJ. (Doc. #25 at 12). Yet plaintiff does not
provide any factual details about those lawsuits, nor does he explain how those lawsuits amount to a municipal policy or custom.
Indeed, there is nothing in the TAC to suggest that those lawsuits have anything to do with the allegations in plaintiff's TAC.
Accordingly, plaintiff fails to state a Monell claim.
IX. State Law Claims
A. Notice of Claim
The County Defendants argue plaintiff has failed to file a notice of claim against the County Defendants, and for this reason
any state-law claims that can be construed from his TAC should be dismissed.
The Court disagrees.
“[I]n a federal court, state notice-of-claim statutes apply to state-law claims.” Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d
789, 793 (2d Cir. 1999). “In New York, filing a [n]otice of [c]laim with a municipality is a condition precedent to commencing a
tort claim against any employee of that municipality.” Chamberlain v. City of White Plains, 986 F. Supp. 2d 363, 396 (S.D.N.Y.
2013). “Failure to comply with [notice of claim] requirements ordinarily requires a dismissal for failure to state a cause of
action.” Hardy v. N.Y.C. Health & Hosps. Corp., 164 F.3d at 794.
Although plaintiff does not address the County Defendants’ notice of claim argument in his opposition to their motion, he argues
in his opposition to the medical defendants’ motion that he timely filed a notice of claim. Plaintiff attached to that opposition
a nearly-illegible certified mail receipt indicating he sent a mailing to an unidentifiable White Plains address, and that such
mailing was delivered on December 21, 2018. (Doc. #48 at 3). At this early stage, construing plaintiff's allegations as true,
plaintiff plausibly alleges he filed a notice of claim.
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B. Supplemental Jurisdiction
Defendants argue the Court should decline to exercise supplemental jurisdiction over any state-law claims that may be construed
from plaintiff's TAC.
The Court agrees except as to any state-law claims relating to plaintiff's First Amendment retaliation claim against Capt.
Thomalen.
“[I]n any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same
case or controversy.” 28 U.S.C. § 1367(a). “For purposes of [S]ection 1367(a), claims form part of the same case or controversy
if they derive from a common nucleus of operative fact.” Shahriar v. Smith & Wollensky Rest. Grp., Inc., 659 F.3d 234, 245
(2d Cir. 2011).
As noted above, plaintiff has alleged a plausible First Amendment retaliation claim against Capt. Thomalen. Accordingly, to
the extent plaintiff's TAC may be construed to allege any state-law claims arising from a common nucleus of operative fact as
his retaliation claim against Capt. Thomalen, the Court may exercise supplemental jurisdiction over such claims.
However, plaintiff's retaliation claim against Capt. Thomalen is the only claim “in this action” 28 U.S.C. § 1367(a), surviving
dismissal. Accordingly, the Court may not exercise supplemental jurisdiction over any potential state-law claims that do not
arise from a common nucleus of operative fact as the First Amendment retaliation claim against Capt. Thomalen. And because
the allegations underlying this retaliation claim do not comprise any other defendant's conduct, the Court cannot exercise
supplement jurisdiction over any state-law claims against the other defendants in this action. See 28 U.S.C. § 1367(a).
CONCLUSION
*12 The medical defendants’ motion to dismiss (Doc. #45) is GRANTED.
The County's motion to dismiss (Doc. #57) is GRANTED.
The County Defendants’ motion to dismiss (Doc. #61) is GRANTED IN PART and DENIED IN PART.
The only remaining claims are: (i) plaintiff's First Amendment retaliation claim against Capt. Thomalen; and (ii) any state-law
claims that may be construed from the TAC that arise from a common nucleus of operative fact as to the First Amendment
retaliation claim against Capt. Thomalen.
The Clerk is instructed to terminate the motions (Docs. ##45, 57, 61) and terminate from this case the following defendants:
(i) Correct Care Solutions, LLC; (ii) New York Correct Care Solutions Medical Services, P.C.; (iii) Dr. Raul Ulloa; (iv) Dr.
Alexis Gendell; (v) Westchester County; (vi) Assistant Warden Francis Delgrosso; (vii) Assistant Warden LaFonda Spaulding;
(viii) Captain Christopher Roberts; (ix) Sergeant Hector Lopez; (x) Sergeant Michael Randazzo; and (xi) Correction Officer
Harrington (sued herein as C.O. Herrington).
By February 17, 2020, defendant Capt. Thomalen shall file an answer to the TAC, to the extent that the TAC alleges a First
Amendment retaliation claim and/or a related state-law claim against him.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and
therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–
45 (1962).
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Rutherford v. Correct Care Solutions, LLC, Not Reported in Fed. Supp. (2020)
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SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2020 WL 550701
Footnotes
1 By Order dated May 7, 2019, the Court construed plaintiff's second amended complaint (Doc. #25) and supplemental
filing (Doc. #29) as the operative third amended complaint in this action. (Doc. #30).
2 Citations to “Doc. #__ at __” refer to document and page numbers automatically assigned by the Court's Electronic
Case Filing system.
3 Unless otherwise indicated, case quotations omit all internal citations, quotations, footnotes, and alterations.
4 Plaintiff will be provided copies of all unpublished opinions cited in this decision. See Lebron v. Sanders, 557 F.3d 76,
79 (2d Cir. 2009).
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Thomas v. Wood, Not Reported in Fed. Supp. (2021)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2021 WL 5827275
Only the Westlaw citation is currently available.
United States District Court, W.D. New York.
James THOMAS, Plaintiff,
v.
T. WOOD, et al., Defendants.
19-CV-6915-FPG
|
Signed 12/08/2021
Attorneys and Law Firms
Bernadette Gargano, University at Buffalo School of Law, Buffalo, NY, for Plaintiff.
James Thomas, Napanoch, NY, Pro Se.
Matthew D. Brown, New York State Office of the Attorney General, Rochester, NY, for Defendants.
DECISION AND ORDER
FRANK P. GERACI, JR., United States District Judge
INTRODUCTION
*1 Plaintiff filed this action on December 23, 2019, asserting claims under both the Eighth and Fourteenth Amendments. ECF
No. 1. On February 5, 2020, Plaintiff filed an Amended Complaint. ECF No. 10. On March 31, 2020, the Court entered an
Order indicating that both Plaintiff's initial Complaint and Amended Complaint were active pleadings, but the Court dismissed
Plaintiff's Fourteenth Amendment claims. ECF No. 16.
Defendants answered the Complaint on June 10, 2020, ECF No. 20, and the case was referred to United States Magistrate Judge
Mark W. Pedersen, for all pretrial matters excluding dispositive motions. ECF No. 21. On March 3, 2021, Defendants filed a
motion for judgment on the pleadings, ECF No. 39, and after the Court appointed limited scope pro bono counsel, Plaintiff
responded in opposition. ECF No. 44. Defendants timely replied. ECF No. 46.
In their initial motion, Defendants argue that Plaintiff failed to exhaust his claims and therefore, pursuant to the Prison Litigation
Reform Act, the case must be dismissed. See ECF No. 39-2 at 4-5. In response, Plaintiff, through counsel, notes that the failure
to exhaust is not a basis upon which the Court may grant a motion for judgment on the pleadings as it is not a jurisdictional
issue, and that Plaintiff's Complaint includes assertions that his administrative remedies were, in fact, exhausted. See ECF No.
44 at 5-9. Defendants, recognizing the error in asserting that exhaustion under the Prison Litigation Reform Act was grounds
for dismissal, requested that the Court convert the motion to a motion for summary judgment and provide Plaintiff with proper
notice. ECF No. 46 at 2. The Court agreed and entered a Decision and Order indicating that the motion would be construed as
one for summary judgment and sent Plaintiff notice on October 13, 2021. ECF No. 48.
On October 22, 2021, Plaintiff filed an Objection to the Court's Decision and Order arguing that the Court should not have
converted the pending motion into one for summary judgment because Defendants did not comply with the specific pleading
requirements for a Rule 56 motion. ECF No. 49 at 2. More specifically, Plaintiff argued that Defendants’ submission failed
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to include a statement of material facts. Id. Nevertheless, on November 8, 2021, Plaintiff filed his response. ECF No 50. In
addition, on November 15, 2021, Plaintiff filed a Motion to Appoint Counsel. ECF No. 51.
For the reasons set forth below, the Motion for Summary Judgment, ECF No. 39, is GRANTED and Plaintiff's Complaint is
DISMISSED. Because the Court was able to decide the motions on the submitted papers, including Plaintiff's counseled brief,
Plaintiff's Motion to Appoint Counsel, ECF No. 51, is DENIED.
BACKGROUND
At the times relevant to this claim, Plaintiff James Thomas was an inmate at Wende Correctional Facility (“Wende”) in Alden,
New York. ECF No. 1 at 1. On December 23, 2019, Plaintiff filed this Complaint against two correctional officers from Wende
—J. Wood and J. Klepp. Id. On February 5, 2020, Plaintiff filed an Amended Complaint, again asserting claims against Wood
and Klepp and adding claims against Deputy Superintendent K. Brown. ECF No. 10. This Court construed both complaints as
being operative in its March 31, 2020 Order. ECF No. 16.
*2 According to Plaintiff, on November 23, 2019, Defendant Wood allowed two inmates to enter Plaintiff's cell and assault
him by cutting him in the head and face. ECF No. 1 at 5. Defendant Wood was allegedly aware of the violence and did not
attempt to stop it. Id. Plaintiff indicates that he filed a grievance and appealed this claim. In particular, he alleges that he received
no response after filing the initial grievance and wrote to the Superintendent and OSI. Id.
Then, on November 24, 2019, Plaintiff asserts that at 6:22 p.m. his cell gate was opened and another inmate entered and stabbed
him in his face and head while Defendant Klepp and Defendant Wood watched. Id. at 6. Plaintiff was later taken to the hospital.
Id. Plaintiff again indicates that he filed a grievance, appealed the claim, received no response, and wrote to the Superintendent
and OSI. Id.
Sometime thereafter, Plaintiff was placed in the Special Housing Unit (the “SHU”) where he spent 30 days. ECF No. 10 ¶ 7.
During those 30 days, Plaintiff states that he “wrote over 6 [l]etter[s] to defendant that a hit has been put out on him.” Id. ¶ 8.
On December 23, 2019, Plaintiff filed this claim. See ECF No. 1.
On January 17, 2020, Plaintiff was released from SHU and placed in a housing block. ECF No. 10 ¶ 13. On January 29, 2020,
Plaintiff was again assaulted. Id. ¶ 14. As a result, Plaintiff filed the amended complaint on February 5, 2020, containing such
factual allegations. Id.
DISCUSSION
I. Conversion to Motion for Summary Judgment
A district court's “conversion of a Rule 12[c] motion into one for summary judgment is governed by principles of substance
rather than form.” Hawkins v. GM Components Holdings LLC, 405 F. Supp. 3d 483, 485 (W.D.N.Y. 2019) (quoting Sahu v.
Union Carbide Corp., 548 F.3d 59, 67 (2d Cir. 2008) (quotations omitted)). Meaning, despite Plaintiff's objection, it is not
necessary for the parties to submit a statement of material facts as required by the Local Rules of Civil Procedure for the Court
to convert the instant motion into one for summary judgment. Id.; see also, e.g., G & A Books, Inc. v. Stern, 770 F.2d 288, 295
(2d Cir. 1985) (“Even where only the party moving to dismiss has submitted extrinsic material such as depositions or affidavits,
the opposing party may be deemed to have had adequate notice that the motion to dismiss would be converted.”); Bd. of Trs. of
Teamsters Local 918 Pension Fund v. Freeburg & Freeburg, C.P.A., No. 98-CV-4895(SJ), 1999 WL 803895, at *4 (E.D.N.Y.
Sept. 28, 1999) (“[I]n a motion to dismiss under 12(b)(6), where affidavits and exhibits in addition to the pleadings are presented
to and not excluded by the court, the court must convert the 12(b)(6) motion into a motion for summary judgment.” (collecting
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cases)). Regardless, Defendants filed a response to Plaintiff's statement of material facts indicating which factual assertions
they agree with and which they do not. See ECF No. 52.
II. Motion for Summary Judgment
A. Legal Standard
Summary judgment is appropriate when the record 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Disputes concerning material facts are genuine where the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether genuine issues of material
fact exist, the court construes all facts in a light most favorable to the non-moving party and draws all reasonable inferences in
the non-moving party's favor. See Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005).
*3 “The moving party bears the burden of showing the absence of a genuine dispute as to any material fact[.]” Crawford v.
Franklin Credit Mgmt. Corp., 758 F.3d 473, 486 (2d Cir. 2014). Once the moving party has met its burden, the opposing party
“must do more than simply show that there is some metaphysical doubt as to the material facts, and may not rely on conclusory
allegations or unsubstantiated speculation.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (quoting
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011)). Specifically, the non-moving party “must come forward with
specific evidence demonstrating the existence of a genuine dispute of material fact.” Brown, 654 F.3d at 358. Indeed, “the
mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48.
B. Exhaustion
Under the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), “[n]o action shall be brought with respect to prison
conditions under section 1983 ... or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility
until such administrative remedies as are available are exhausted.” The administrative 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). If an inmate fails to exhaust his administrative remedies, he is barred from commencing a federal lawsuit.
Martin v. Niagara Cty. Jail, No. 05-CV-00868, 2012 WL 3230435, at *6 (W.D.N.Y. Aug. 6, 2012). In other words, to commence
a lawsuit “prisoners must complete the administrative review process in accordance with the applicable procedural rules—rules
that are defined not by the PLRA, but by the prison grievance process itself.” Johnson v. Killian, 680 F.3d 234, 238 (2d Cir.
2012) (internal quotations and citation omitted). Exhaustion necessitates “using all steps that the [government] agency holds
out, and doing so properly.” Amador v. Andrews, 655 F.3d 89, 96 (2d Cir. 2011) (quoting Woodford v. Ngo, 548 U.S. 81, 90
(2006)). To be “[p]roper,” exhaustion must comply with all of the agency's “deadlines and other critical procedural rules.”
Woodford, 548 U.S. at 90-91.
To satisfy the PLRA's exhaustion requirement, an inmate in New York is generally required to follow the prescribed grievance
procedure, which is set forth at 7 N.Y.C.R.R. § 701.5. The grievance process begins with filing a complaint within 21 days
of the alleged incident. Id. at § 701.5(a)(1). Typically, inmates file the grievances directly with the grievance clerk. 1 Id. The
inmate's administrative remedies consist of a three-step grievance and appeal procedure: (1) investigation and review of the
grievance by the Inmate Grievance Resolution Committee (“IGRC”); (2) if appealed, review of the IGRC's determination by the
superintendent of the facility; and (3) if the superintendent's decision is appealed, review and final administrative determination
by the Central Office Review Committee (“CORC”). See § 701.5. All three steps of this procedure must ordinarily be exhausted
before an inmate may commence suit in federal court. See Morrison v. Parmele, 892 F. Supp. 2d 485, 488 (W.D.N.Y. 2012).
However, the Supreme Court has identified several situations in which administrative remedies are deemed “unavailable”:
(1) when the procedure operates as a simple dead end, with officers consistently unwilling to provide any relief; (2) when an
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administrative scheme is so opaque that it becomes essentially incapable to use; and (3) when prison administrators prevent
inmates from using the grievance process. 2 See Ross v. Blake, 578 U.S. 632, 642-44 (2016) 136 S. Ct. 1850, 1859-60.
*4 As an initial matter, to the extent Plaintiff is asserting a claim due to the alleged January 29, 2020 incident, his claim must be
dismissed. Indeed, Plaintiff makes no allegation that he exhausted his administrative remedies or even began the administrative
process as a result of the January 29, 2020 incident, nor does he assert that the administrative remedies were unavailable to
him. Rather, Plaintiff alleges that he would have “more proof” of the incident once a hearing had taken place. See ECF No. 10
¶ 15. It is unclear to this Court whether the alleged hearing was occurring in relation to a grievance that was filed due to this
incident or for some other purpose. Therefore, Defendants’ Motion for Summary Judgment for failure to exhaust concerning
the January 29, 2020 incident is GRANTED as Plaintiff has provided no evidence or factual assertion from which the Court
may find that a material question of fact exists.
Plaintiff's allegations regarding the grievances concerning the events that occurred on November 23, 2019 and November 24,
2019 are less clear. In his initial Complaint, ECF No. 1, Plaintiff asserts that he grieved the claims and further provides that
after receiving no response, he wrote to the Superintendent and OSI. See ECF No. 1 at 5-6. In his Amended Complaint, Plaintiff
asserts that he notified a defendant of his safety concerns and wrote over six letters to Defendant Brown “that a hit has been
put out on him and that he needed PC[.]” ECF No. 10 ¶ 8. In opposition to the summary judgment motion, Plaintiff asserts in
a conclusory manner that he submitted all necessary grievances to facility administration. ECF No. 50 at 2. He further argues
that the absence of such grievances in the prison's file system demonstrates that exhaustion remedies were unavailable as the
officials may have disposed of the grievances as a means of inconveniencing him. Id. at 3.
As an initial matter, the Court recognizes that the regulations provide that inmates in the SHU may file grievances by giving the
complaint to a correction officer to forward to a grievance clerk and that courts have further found that the regulations do not
sufficiently outline the process to appeal where a grievance is never filed. See Williams v. Correction Officer Priatno, 829 F.3d
118, 124 (2d Cir. 2016). Thus, where an inmate attempts to timely file a grievance by handing it to an officer while in the SHU
and the officer fails to file the grievance, the inmate's avenues for pursuing the grievance would be deemed unavailable. Id.
However, those are not the circumstances that Plaintiff alleges here. While Plaintiff claims that during his time housed in the
SHU he wrote various letters to Defendant Brown, he does not allege that the letters were grievances for alleged improper
conduct or that they were not properly filed. Rather, Plaintiff expressly states that the letters informed Defendant Brown that
a “hit” had been placed on him and requested he be placed in protective custody. ECF No. 50 at 10 ¶ 19 (“Thomas Decl.”).
Those requests were later denied. See ECF No. 10 ¶ 8, 11. At no point does Plaintiff assert that such letter requests also included
complaints of the November 23, 2019 or November 24, 2019 misconduct, or that such letters were meant to be filed with the
grievance clerk. 3 Indeed, letters cannot simply be treated as a “grievance.” See 7 N.Y.C.R.R. § 701.2(a) (“A letter addressed to
facility or central office staff is not a grievance.”); see, e.g., Timmons v. Schriro, No. 14-CV-6606 RJS, 2015 WL 3901637, at
*3 (S.D.N.Y. June 23, 2015) (“[T]he law is well-settled that informal means of communicating and pursuing a grievance, even
with senior prison officials, are not sufficient under the PLRA.”); Muhammad v. Pico, No. 02-CV-1052, 2003 WL 21792158,
at *8 (S.D.N.Y. Aug. 5, 2003) (“District court decisions in this circuit have repeatedly held that complaint letters to the DOCS
Commissioner or the facility Superintendent do not satisfy the PLRA's exhaustion requirements.”) (footnote omitted).
*5 In any event, Plaintiff continues to assert that he “submitted all necessary grievances to facility administration,” ECF No.
50 at 2, and points to his own testimony in support, see Thomas Decl. ¶ 29. However, Plaintiff only alleges that after grievances
went unanswered, he wrote letters to the Superintendent. Even assuming these letters could constitute grievance appeals under
the regulations, Plaintiff does not assert he appealed or attempted to appeal through the CORC—a necessary step to exhaustion.
See 7. N.Y.C.R.R. § 701.5(d); Omaro v. Annucci, 68 F. Supp. 3d 359, 364 (W.D.N.Y. 2014) (“It is well established that an inmate
who does not appeal to CORC has failed to exhaust his administrative remedies.”). Defendants, in fact, provide a certified
printout of database results listing all grievances filed by Plaintiff while detained at Wende, which they argue demonstrates that
no such grievance was filed concerning the events at issue here. ECF No. 39-1 at 6-8 (“Ex. A”).
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Thomas v. Wood, Not Reported in Fed. Supp. (2021)
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Nevertheless, Plaintiff maintains that Defendants’ claim that no evidence of exhaustion exists is simply evidence of their own
“mismanagement of records,” Thomas Decl. ¶ 30, and creates a question of fact that must be resolved at a hearing. ECF No. 44
at 8 (relying on Ortiz v. Annucci, No. 17-CV-3620 (RJS), 2019 WL 1438006, at *9 (S.D.N.Y. Mar. 29, 2019)). However, the
circumstances in Ortiz v. Annucci are easily distinguished from the circumstances present here. In Ortiz, the plaintiff claimed
that he completed each step in the grievance process. Specifically, the plaintiff asserted that while he was in the SHU he asked for
a grievance form and was denied. Ortiz, 2019 WL 1438006 at *3. Following the denial, he wrote a grievance on plain stationery,
made a contemporaneous copy, placed the original in an envelope addressed to the IGRC, and dropped it into a mailbox. Id. He
claims that at that point, it was either thrown out or destroyed and never filed. Id. After failing to receive a response, plaintiff
asserts he requested an appeal form and was again denied access. Id. Again, he wrote an appeal on plain stationery, made a
contemporaneous copy, and sent the original to the grievance committee. Id. After receiving a response indicating that no initial
grievance was received, Plaintiff appealed to CORC. Id. After no response was sent by CORC, he wrote a letter to the Governor,
District Attorney, and Commissioner of DOCCS. Id.
In support of his satisfaction of the exhaustion requirement, the plaintiff in Ortiz pointed to his own testimony and copies of the
grievance and appeal. Id. The defendants, on the other hand, relied on various declarations which attested that a records review
failed to uncover any grievance or other documentation concerning the incident. Id. at *2.
In finding that plaintiff sufficiently demonstrated a genuine dispute of material fact existed, the court in Ortiz noted that the
plaintiff not only relied on his own testimony but on a copy of the grievance itself. Id. at *9. Additionally, the court determined
that plaintiff's theory that officers were interfering with his attempts to file grievances was further supported by the fact that
the grievance was submitted on ordinary stationery and that the affidavits from fellow inmates indicated issues of harassment
involving defendants and plaintiff were frequent. Id. Indeed, the court also found that defendants’ evidence suggested the same
—the absence of records of plaintiff's appeal demonstrated that officers failed to file the grievance or otherwise obstructed it. Id.
Though the Court does not diminish the severity of Plaintiff's allegations, the Court does not find that Plaintiff—even construing
allegations in his favor—has supplied any evidence from which the Court may find a question of material facts exists. Brown,
654 F.3d at 358 (the non-moving party “must come forward with specific evidence demonstrating the existence of a genuine
dispute of material fact”). Plaintiff does not point to any evidence other than his own conclusory testimony that all necessary
grievances were filed. He makes no allegations that Defendants or other officers attempted to interfere with the grievance
procedure. He does not claim that the letters provided to Defendant Brown contained complaints of misconduct or were meant
to be filed with the grievance clerk. Instead, without any evidence or support, Plaintiff asserts that Defendants’ lack of record
demonstrates their own mismanagement of such. Thomas Decl. ¶ 30. It would be improper for this Court to alone rely on
Plaintiff's conclusive assertion that he filed all necessary grievances without any factual support, and instead conclusively assert
Defendants’ mismanagement. Therefore, Defendant's Motion for Summary Judgment, ECF No. 39, is GRANTED.
CONCLUSION
*6 For the reasons discussed, Plaintiff's Motion to Appoint Counsel, ECF No. 51, is DENIED and Defendants’ Motion for
Summary Judgment, ECF No. 39, is GRANTED and Plaintiff's claims are DISMISSED.
IT IS SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2021 WL 5827275
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Footnotes
1 However, in situations where, as alleged here, the inmate is housed in the SHU, he may give the grievance complaint
to a correction officer to file for him. See 7 N.Y.C.R.R. § 701.7.
2 Because the failure to exhaust is an affirmative defense, Defendants bear the initial burden of establishing that the
grievance process exists and applies to the underlying dispute. See Mojias v. Johnson, 351 F.3d 606, 610 (2d Cir. 2003).
If Defendants meet that burden, remedies may still be deemed unavailable if Plaintiff can demonstrate that other factors
rendered the procedure unavailable as a matter of law. Hemphill v. New York, 280 F.3d 680, 688 (2d Cir. 2004).
3 Additionally, Plaintiff asserts that these letters were written during his 30 days in the SHU, which ended with a release
on January 17, 2020. Thomas Decl. ¶ 11. Therefore, accepting Plaintiff's allegations as true, he was placed in the SHU
sometime around December 18, 2019. The grievance process begins with filing a complaint within 21 days of the alleged
incident. 7 N.Y.C.R.R. § 701.5(a)(1). December 15, 2019 is 21 days after the November 24, 2019. Thus, it is unclear to
this Court whether a grievance filed while Plaintiff was in the SHU would even be rendered timely.
End of Document © 2025 Thomson Reuters. No claim to original U.S. Government Works.
Case 9:24-cv-00295-AMN-MJK Document 78 Filed 11/21/25 Page 175 of 178

Whetsel v. Montas, Not Reported in Fed. Supp. (2019)
© 2025 Thomson Reuters. No claim to original U.S. Government Works. 1
2019 WL 2743641
Only the Westlaw citation is currently available.
United States District Court, E.D. New York.
Wade WHETSEL, Plaintiff,
v.
Detective Ronald J. MONTAS, Defendant.
19-CV-2687(JS)(AYS)
|
Signed 07/01/2019
Attorneys and Law Firms
For Plaintiff: Wade Whetsel, pro se, 71574-053, U.S. Penitentiary Canaan, P.O. Box 300, Waymart, Pennsylvania 18472,
Metropolitan Detention Center, P.O. Box 329002, Brooklyn, New York 11232 1 .
For Defendant: No appearance.
MEMORANDUM & ORDER
SEYBERT, District Judge:
*1 On April 30, 2019, incarcerated pro se plaintiff Wade Whetsel (“Plaintiff”) filed a Complaint in this Court pursuant to
42 U.S.C. § 1983 (“Section 1983”) against Kings County Detective Ronald J. Montas (“Defendant”), accompanied by an
application to proceed in forma pauperis and a motion for the appointment of pro bono counsel to represent him in this case.
However, Plaintiff did not file the required Prisoner Litigation Authorization form (“PLRA”) at the time the Complaint was
filed. Accordingly, by Notice of Deficiency dated May 7, 2019, Plaintiff was instructed to complete and return the enclosed
PLRA within fourteen (14) days in order for his case to proceed. On May 15, 2019, Plaintiff timely filed the PLRA.
DISCUSSION
I. In Forma Pauperis Application
Upon review of the declaration in support of the application to proceed in forma pauperis, the Court finds that Plaintiff is
qualified to commence this action without prepayment of the filing fee. See 28 U.S.C. §§ 1914(a); 1915(a)(1). Therefore,
Plaintiff's request to proceed in forma pauperis, (IFP Mot., Docket Entry 2), is GRANTED and the Court ORDERS service of
the Summons and Complaint upon Defendant by the United States Marshal Service.
II. Application for Appointment of Pro Bono Counsel
Unlike criminal defendants, civil litigants do not have a constitutional right to the appointment of counsel. However, pursuant
to 28 U.S.C. § 1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford counsel.” In deciding
a motion for appointment of counsel, “the district judge should first determine whether the indigent's position seems likely to
be of substance.” Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). A position is likely to be of substance if it appears
to the court that the plaintiff “appears to have some chance of success....” Hodge, 802 F.2d at 60-61. Where a plaintiff satisfies
this threshold requirement, the Second Circuit instructs that
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the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting
evidence implicating the need for cross-examination will be the major proof presented to the fact finder,
the indigent's ability to present the case, the complexity of the legal issues and any special reason in that
case why appointment of counsel would be more likely to lead to a just determination.
Hodge, 802 F.2d at 61-62. These factors are not restrictive and “[e]ach case must be decided on its own facts.” Id. at 61.
Notwithstanding the requirement that pleadings drafted by a pro se litigant, are to be construed liberally and interpreted to raise
the strongest arguments they suggest, see Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the Court, upon careful review of
the facts presented herein and in light of the factors required by law as discussed above, finds that the appointment of counsel is
not warranted at this time. Even assuming that Hodge’s threshold requirement is satisfied, the record reflects that the legal issues
presented by his claims are not unduly complex and that Plaintiff can adequately prosecute his claims himself pro se. Based on
this review, Plaintiff's motion for appointment of pro bono counsel is DENIED WITHOUT PREJUDICE AND WITH LEAVE
TO RENEW when the action is ready for trial, if warranted at that time. It is Plaintiff's responsibility to retain an attorney or
continue to pursue this lawsuit pro se. See 28 U.S.C. § 1654.
CONCLUSION
*2 For the reasons set forth above, Plaintiff's application to proceed in forma pauperis is GRANTED and the Court ORDERS
service of the Summons and Complaint upon Defendant by the United States Marshal Service. The application for the
appointment of pro bono counsel is DENIED WITHOUT PREJUDICE AND WITH LEAVE TO RENEW when this case is
trial ready, if so warranted at that time.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and
therefore in forma pauperis status is DENIED for the purpose of any appeal should Defendant seek leave to appeal in forma
pauperis. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L. Ed. 2d 21 (1962).
SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2019 WL 2743641
Footnotes
1 The Court notes that although Plaintiff's address of record is at the Canaan Penitentiary in Pennsylvania, mail received
by the Court on May 15, 2019 reflects that Plaintiff mailed it from the Metropolitan Detention Center (“MDC”) in
Brooklyn, New York and lists MDC as Plaintiff's current facility. (See PLRA, D.E. 8.) In an abundance of caution, this
Memorandum and Order will be sent to Plaintiff at both addresses. Plaintiff is advised that he must keep his address
current and, if he fails to do so, the Complaint may be dismissed.
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Whetsel v. Montas, Not Reported in Fed. Supp. (2019)
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