Holmes v. Mastraccio et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JALEN HOLMES,
Plaintiff,
- v - 	No. 9:24-CV-1005
(LEK/DJS)
MASTRACCIO and CIANCIO,
Defendants.
APPEARANCES: 	OF COUNSEL:
JALEN HOLMES
Plaintiff Pro Se
22-B-5190
Mid-State Correctional Facility
P.O. Box 2500
Marcy, New York 13403
HON. LETITIA JAMES 	OLIVIA R. COX, ESQ.
Attorney General for the State of New York 	Assistant Attorney General
Attorney for Defendants
The Capital
Albany, New York 12224
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER1
Plaintiff filed the Complaint in this action alleging violation of his constitutional
rights while he was incarcerated at Mid-State Correctional Facility (“Mid-State”). Dkt.
No. 1, Compl. Named as Defendants are two employees of the Department of Corrections
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and Community Supervision (“DOCCS”), 	Frank Mastraccio and 	William Ciancio
(“Defendants”), who work at Mid-State. Id. at p. 2. Defendants have filed a pre-answer
Motion to Dismiss and for Partial Summary Judgment pursuant to Federal Rules of Civil
Procedure 12(b)(6) and 56. 	Dkt. No. 39. 	Plaintiff filed a response in opposition to
Defendants’ Motion. 	Dkt. No. 46, Pl.’s Opp. 	Defendants filed a reply to Plaintiff’s
Opposition. Dkt. No. 47, Reply.
For the reasons that follow, this Court recommends that the Motion be granted in
part and denied in part.
I. BACKGROUND
A. Factual Allegations
Plaintiff has been confined at Mid-State Correctional Facility since April 11, 2024.
Dkt. No. 39-4, Tapia Decl. ¶ 12. Plaintiff was placed in the Step-Down program while
serving a disciplinary sentence in the special housing unit (“SHU”) at Mid-State. Compl.
at p. 3; Dkt. No. 1-1 at p. 10. 	The goal of the Step-Down program is “[t]o provide
incarcerated individuals with a productive alternative to segregated confinement by
preparing them for the transition back to general confinement or the community.” 	7
N.Y.C.R.R. § 316.1. SHU inmates that are placed in the Step-Down Program are afforded
“out-of-cell” time, that the typical SHU inmate may not be provided. See 7 N.Y.C.R.R.
§ 316.1; see also 7 N.Y.C.R.R. §301.1. Plaintiff alleges that during this time, Corrections
Officer Mastraccio used excessive force and retaliated against him on multiple occasions
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and that Supervising Offender Rehabilitation Coordinator Ciancio denied him his right to
due process. Compl. at pp. 5-7.
For the purposes of this Motion, Defendants have accepted as true the facts as told
by the Plaintiff in the Complaint. Dkt. No. 39-11, Defs.’ Mem. of Law, p. 2 n.1. On May
1, Mastraccio went to Plaintiff’s cell to return his laundry and slammed Plaintiff’s hand
in the cell feed-up slot. 	Compl. at p. 5.1 	Plaintiff filed a grievance in response to this
incident. Id. On May 6, Mastraccio said something to Plaintiff, to which he replied that
he did not want to speak to him, to which Mastraccio replied “[i]f I was giv[ing] head you
would want to talk to me.” Id. Plaintiff filed a Prison Rape Elimination Act (“PREA”)
complaint in response to this incident. 	Id. 	On May 13, Defendant Mastraccio reached
his hand into Plaintiff’s cell and touched his stomach. Id. Plaintiff filed PREA and Office
of Special Investigations complaints in response to this occurrence. Id.
On May 25, while returning Plaintiff back to his cell with another corrections
officer, Defendant Mastraccio threw Plaintiff to the ground while still handcuffed, applied
force to his back with his knee, and pushed his head into the ground. Id. at pp. 5-6.
Plaintiff experienced back pain and a bleeding elbow as a result of this incident. Id. at p.
6. 	Plaintiff alleges that these physical acts were committed in retaliation to Plaintiff’s
filing of various complaints against Mastraccio. Id. at p. 5. On May 27, Plaintiff received
1 The Complaint alleges that this incident occurred on May 11, but Plaintiff’s grievance makes clear that it was May
1. Tapia Decl., Ex. D at p. 2.
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a misbehavior report filed by Defendant Mastraccio, which he alleges is entirely
fabricated. Id. As a result of this report, Plaintiff was denied the privilege of attending
the Step-Down Program “out-of-cell” opportunities. Id. On May 31, Defendant Ciancio
held a disciplinary hearing with regard to the misbehavior report filed against Plaintiff in
which Plaintiff was denied the opportunity to attend. Id. Ciancio sentenced Plaintiff to
120 days in the SHU and removed three months of good time. Id. Plaintiff appealed this
finding to Superintendent Bryan Hilton, who dismissed the determination against Plaintiff
and removed it from his record. Id. at 7.
B. Procedural Background
The Complaint was reviewed under 28 U.S.C. §§ 1915(e) and 1915A. 	See Dkt.
No. 8. There appears to be some confusion on which claims survived initial review. See
generally Defs.’ Mem. of Law. 	After that review, the District Court permitted the
following claims to proceed:
1) Eighth Amendment claims against Defendant Mastraccio, Dkt. No. 8 at pp. 7-
9;
2) a First Amendment retaliation claim against Mastraccio concerning an incident
on May 25, 2024, id. at p. 10; and
3) a Fourteenth Amendment due process claim against Defendant Ciancio, id. at
pp. 10-14; Dkt. No. 18.
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II. STANDARDS OF REVIEW
A. Motion to Dismiss
On a motion to dismiss, the allegations of the complaint must be accepted as true.
See Cruz v. Beto, 405 U.S. 319, 322 (1972). The trial court’s function “is merely to assess
the legal feasibility of the complaint, not to assay the weight of the evidence which might
be offered in support thereof.” 	Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980).
“The issue is not whether a plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236
(1974) (overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)).
The Court is bound to give the plaintiff the benefit of every reasonable inference
to be drawn from the “well-pleaded” allegations of the complaint. See Retail Clerks Int’l
Ass’n, Local 1625, AFL-CIO v. Schermerhorn, 373 U.S. 746, 754 (1963). Nevertheless,
“the tenet that a court must accept as true all of the allegations contained in a complaint
is inapplicable to legal conclusions.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Therefore, “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” 	Id. (citation omitted). 	A motion to dismiss
pursuant to Rule 12(b)(6) may not be granted so long as the Plaintiff’s complaint includes
“enough facts to state a claim to relief that is plausible on its face.” 	Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. at 697.
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“A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. This plausibility standard “is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.” Id. In this respect, to survive dismissal, a plaintiff “must provide
the grounds upon which his claim rests through factual allegations sufficient ‘to raise a
right to relief above the speculative level.’” 	ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,
493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 440 U.S. at 555).
Thus, in spite of the deference the court is bound to give to Plaintiff’s allegations, it is not
proper for the court to assume that “the [plaintiff] can prove facts [which he or she] has
not alleged or that the defendants have violated the . . . laws in ways that have not been
alleged.” Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459
U.S. 519, 526 (1983). The process of determining whether a plaintiff has “nudged [his]
claims . . . across the line from conceivable to plausible,” entails a “context-specific task
that requires the reviewing court to draw on its judicial experience and common sense.”
Ashcroft v. Iqbal, 556 U.S. at 679-80.
Where, as here, the complaint was filed pro se, it must be construed liberally with
“special solicitude” and interpreted to raise the strongest claims that it suggests. Hill v.
Curcione, 657 F.3d 116, 122 (2d Cir. 2011). Nonetheless, a pro se complaint must state
a plausible claim for relief. See Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009).
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B. Motion for Summary Judgment
Pursuant 	to 	Federal 	Rule 	of 	Civil 	Procedure 	56(a), 	summary 	judgment 	is
appropriate only where “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” 	The moving party bears the burden to
demonstrate through “pleadings, depositions, answers to interrogatories, and admissions
on file, together with [ ] affidavits, if any,” that there is no genuine issue of material fact.
F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific
facts showing that there is a genuine issue for trial and cannot rest merely on allegations
or denials of the facts submitted by the movant. F ED . R. CIV . P. 56(c); see also Scott v.
Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory allegations or denials are
ordinarily not sufficient to defeat a motion for summary judgment when the moving party
has set out a documentary case.”); Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522,
525-26 (2d Cir. 1994). 	To that end, sworn statements are “more than mere conclusory
allegations subject to disregard . . . they are specific and detailed allegations of fact, made
under penalty of perjury, and should be treated as evidence in deciding a summary
judgment motion” and the credibility of such statements is better left to a trier of fact.
Scott v. Coughlin, 344 F.3d at 289 (citing Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir.
1983) and Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995)).
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When considering a motion for summary judgment, the court must resolve all
ambiguities and draw all reasonable inferences in favor of the non-movant. 	Nora
Beverages, Inc. v. Perrier Grp. of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). 	“[T]he
trial court’s task at the summary judgment motion stage of the litigation is carefully
limited to discerning whether there are any genuine issues of material fact to be tried, not
to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not
extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d
1219, 1224 (2d Cir. 1994). 	Furthermore, where a party is proceeding pro se, the court
must “read [his or her] supporting papers liberally, and . . . interpret them to raise the
strongest arguments that they suggest.” 	Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994), accord, Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995). Nonetheless, summary
judgment is appropriate “[w]here the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party.” 	Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
III. DISCUSSION
A. Motion to Dismiss
Defendants have moved for dismissal of Plaintiff’s Eighth Amendment sexual
assault claims against Defendant Mastraccio, First Amendment retaliation claims against
Defendant Mastraccio, and Fourteenth Amendment due process claims against Defendant
Ciancio, arguing they fail as a matter of law. Defs.’ Mem. of Law at pp. 1 & 12-20.
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1. Eighth Amendment Sexual Assault Claim
In response to Defendants’ Motion, Plaintiff stated that he did not make an Eighth
Amendment sexual harassment claim against Defendant Mastraccio. Pl.’s Opp. at pp. 22-
23.2 Thus, the Court recommends Defendants’ Motion to Dismiss the Eighth Amendment
sexual assault claims be granted.
2. First Amendment Retaliation Claims
Defendants have also moved to dismiss retaliation claims with respect to the
incidents that occurred on April 11, 2024, April 14, 2024, May 1, 2024, May 2, 2024,
May 6, 2024, and May 22, 2024. Defs.’ Mem. of Law at pp. 14-17. However, as
mentioned above, the only retaliation claim that survived the District Court’s review
pursuant to 28 U.S.C. §§ 1915(e) & 1915A, was the incident that allegedly occurred on
May 25, 2024. Dkt. No. 8 at p. 10; see also Pl.’s Opp. at p. 25 (discussing his intent to
bring a retaliation claim only concerning May 25, 2024). 	Accordingly, the Court
recommends this portion of the Motion be denied as moot since it seeks dismissal of
incidents that are not part of the Complaint.
3. Fourteenth Amendment Due Process Claim
“A procedural due process claim consists of two elements: (i) deprivation by state
action of a protected interest in life, liberty, or property, and (ii) inadequate state process.”
2 Plaintiff’s opposition notes that discussion of this incident was included in the Complaint to provide background
information for his retaliation claim and that the incident does not support a claim under the Eighth Amendment.
Pl.’s Opp. at p. 24.
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Reed v. Goertz, 598 U.S. 230, 236 (2023). Defendants argue that Plaintiff has failed to
plead that he was deprived of a protected liberty interest. Defs.’ Mem. of Law at pp. 18-
20. Plaintiff argues that he had a protected liberty interest in being present at his
disciplinary hearing and in the 2-4 hours of out of cell time a day he did not receive for
14 days while attempting to resolve the disciplinary issue. Pl.’s Opp. at p. 26. Defendants
argue that neither constitutes a protected liberty interest. Reply at pp. 10-11.
In determining whether an inmate’s confinement effects a violation of
procedural due process, we consider whether the plaintiff had a protected
liberty interest in not being confined . . . and, if so, whether the deprivation
of that liberty interest occurred without due process of law. 	A prisoner’s
liberty interest is implicated by prison discipline, such as SHU confinement,
only if the discipline imposes an atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.
Gonzalez v. Hasty, 802 F.3d 212, 223 (2d Cir. 2015) (internal quotations, citations, and
alterations omitted).
The Supreme Court has recognized that
[S]tates may under certain circumstances create liberty interests which are
protected by the Due Process Clause. But these interests will be generally
limited to freedom from restraint which, while not exceeding the sentence
in such an unexpected manner as to give rise to protection by the Due
Process 	Clause 	of 	its 	own 	force, 	nonetheless 	imposes 	atypical 	and
significant hardship on the inmate in relation to the ordinary incidents of
prison life.
Sandin v. Conner, 515 U.S. 472, 483-84 (1995). “Confinement to segregated housing may
trigger procedural due process protections, depending on the length, frequency, and
conditions of the confinement.” Williams v. Annucci, 2021 WL 4775970, *7 (N.D.N.Y.
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Oct. 13, 2021). In Sandin, for example, the Supreme Court held that solitary confinement
for a period of 30 days did not demonstrate “the type of atypical, significant deprivation
in which a State might conceivably create a liberty interest.” Sandin v. Conner, 515 U.S.
at 486.
The Second Circuit has found that “[a] period of confinement under typical SHU
conditions lasting longer than 305 days . . . triggers a protected liberty interest, whereas a
period of confinement lasting between 101 and 305 days may trigger a protected liberty
interest, depending on the specific conditions of confinement.” 	Gonzalez v. Hasty, 802
F.3d 212, 223 (2d Cir. 2015). 	Plaintiff has not alleged there to be anything atypical about
his SHU conditions during the fourteen days he was denied programming. 	See Compl.
Generally speaking, a fourteen-day disciplinary confinement does not implicate a
protected liberty interest. Barnes v. Cnty. of Monroe, 85 F. Supp. 3d 696, 734 (W.D.N.Y.
2015); Gee v. Fischer, 2011 WL 4965297, at *7 (N.D.N.Y. Sept. 21, 2011), report and
recommendation adopted, 2011 WL 4965038 (N.D.N.Y. Oct. 19, 2011). Here, however,
Plaintiff suffered even less of a deprivation. Plaintiff was already confined to the SHU at
the time of the May 2024 disposition. Compl. at p. 3. And the 120 days he was originally
sentenced to serve was not scheduled to begin until August 22, 2024. Dkt. No. 1-1 at p.
17. The guilty determination, however, was reversed prior to that date, id. at pp. 7 & 9,
and so he spent no time confined as a result of this disciplinary action. At most then, it
appears that Plaintiff suffered a fourteen-day deprivation of the additional out of cell time
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that came with participation in the Step Down program. 	Pl.’s Opp. at pp. 25-26. 	A
deprivation for such a short period of time cannot trigger a protected liberty interest when
full confinement for the same period would not do so. Moreover, it is not clear that there
is any protected liberty interest in participating in that program at all. See Animashaun v.
Fisher, 2020 WL 374578, *17 (N.D.N.Y Jan. 23, 2020).
The Court, therefore, recommends that the due process claim against Defendant
Ciancio be dismissed based on the failure to allege a protected liberty interest.
B. Motion for Summary Judgment
Defendants have moved for summary judgment on Plaintiff’s First and Eighth
Amendment claims against Defendant Mastraccio on the ground that Plaintiff failed to
exhaust all administrative remedies available to him prior to bringing suit in federal court.
Defs.’ Mem. of Law at pp. 6-12. Defendants’ Motion addresses the failure to grieve at all
or fully exhaust a number of incidents of alleged retaliation. Defs.’ Mem. of Law at pp.
9-10. As discussed above, however, Plaintiff has now made clear that he did not intend
to pursue many of those incidents as distinct legal claims. 	See Point III(A)(2) supra.
Issues concerning exhaustion as to those claims, therefore, are not addressed here.
1. 	Exhaustion Procedure
The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, that “[n]o
action shall be brought with respect to prison conditions under section 1983 of this title,
or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
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facility until such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). The Supreme Court has held that “the PLRA’s exhaustion requirement applies
to all inmate suits about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation omitted). 	Exhaustion in prisoner
cases covered by § 1997e(a) is mandatory. 	Id. at 524; see also Ross v. Blake, 578 U.S.
632, 638 (2016) (stating that the mandatory language of § 1997e(a) forecloses judicial
discretion to craft exceptions to the requirement). 	Furthermore, § 1997e(a) requires
“proper exhaustion,” which means using all steps of the administrative process and
complying with “deadlines and other critical procedural rules.” 	Woodford v. Ngo, 548
U.S. 81, 93 (2006). 	The defendant bears the burden of proving that the administrative
remedies available to the plaintiff were not exhausted prior to the initiation of a civil
action. Baxter v. Vespa, 745 F. Supp. 3d 54, 59 (W.D.N.Y. 2024); Smith v. Kelly, 985 F.
Supp. 2d 275, 284 (N.D.N.Y. 2013).
In New York, the administrative remedies consist of a three-step Incarcerated
Grievance Program (“IGP”). First, a grievance is submitted to the Incarcerated Grievance
Resolution Committee (“IGRC”), a committee comprised of both inmates and facility
employees. N.Y. COMP . CODES R. & REGS . tit. 7, § 701.5(b). An inmate must submit a
grievance “within 21 calendar days of an alleged occurrence.” Id. at § 701.5(a)(1). An
inmate may request an extension of the time limit within 45 days of the date of the alleged
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occurrence. Id. at § 701.6(g). The IGRC reviews and investigates the formal complaint
and then issues a written determination. 	Id. at § 701.5(b). 	Second, upon appeal of the
IGRC decision, the superintendent of the facility reviews the IGRC’s determination and
issues a decision. Id. at § 701.5(c). Finally, upon appeal of the superintendent’s decision,
the 	Central 	Office 	Review 	Committee 	(“CORC”) 	makes 	the 	final 	administrative
determination. Id. at § 701.5(d). Only upon exhaustion of all three levels of review may
a prisoner seek relief in federal court. Bridgeforth v. Bartlett, 686 F. Supp. 2d 238, 239
(W.D.N.Y. 2010) (citing, inter alia, Porter v. Nussle, 534 U.S. at 524); see also Neal v.
Goord, 267 F.3d 116, 121 (2d Cir. 2001), overruled on other grounds by Porter v. Nussle,
534 U.S. 516.
An expedited procedure exists for grievances regarding alleged harassment; this
procedure also requires that the grievant receive a response from CORC in order to
exhaust. 7 N.Y.C.R.R. § 701.8.3 Pursuant to this expedited procedure, the inmate may
first report the incident to the employee’s immediate supervisor. Id. at § 701.8(a). The
inmate’s allegations are given a grievance number and the Superintendent (or his
designee) must promptly decide whether the grievance, if true, would represent a bona
fide case of harassment. Id. at §§ 701.8(b) & (c). If it is determined that the grievance is
a bona fide harassment issue, the Superintendent must initiate an investigation or request
3 Such grievances are coded by grievance staff as a “Code 49” grievance. Armand v. Mosko, 2019 WL 2374948, at
*3 (W.D.N.Y. Apr. 9, 2019), report and recommendation adopted, 2019 WL 2374001 (W.D.N.Y. June 4, 2019).
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an investigation be undertaken by the Inspector General’s Office or the New York State
Police. 	Id. at § 701.8(d). 	The Superintendent is to render a decision on the grievance
within 25 days of receipt unless an extension is granted. 	Id. at § 701.8(f). 	If the
Superintendent fails to respond within 25 days, the grievant may appeal the grievance to
CORC “by filing a notice of decision to appeal (form #2133) with the inmate grievance
clerk.” 	Id. at § 701.8(g). 	The grievant may appeal the Superintendent’s response to
CORC by filing a notice of decision to appeal within 7 days of receipt of the
Superintendent’s response. 	Id. at §§ 701.8(h). 	“Unless otherwise stipulated . . . all
procedures, rights, and duties pertaining to the processing of any other grievance as set
forth in section 701.5 of this Part shall be followed.” Id. at § 701.8(i).
2. The Record Regarding Exhaustion
The District Court’s initial review order identified two specific incidents that could
give rise to claims of excessive force under the Eighth Amendment, a May 1 st incident
where Plaintiff claims his hand was slammed in a feed-up slot by Mastraccio4 and a May
25 th alleged assault. See Dkt. No. 8. Defendants contend that neither of these incidents
were properly exhausted. Defs.’ Mem. of Law at pp. 10-12.
It is undisputed that Plaintiff filed grievances as to both of these incidents. Tapia
Decl. at ¶¶ 18-19. The grievance regarding the May 1, 2024 incident, filed that day, was
4 A review of Plaintiff’s opposition to the Motion appears to suggest that he did not intend for the May 1 st incident
to be a distinct claim. See Pl.’s Opp. at p. 22. Having reviewed the record, the Court will assume, consistent with
the initial review order, that this is a distinct claim.
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entitled “Hand Slammed” and assigned the grievance number MS-0190-24. Tapia Decl.
¶ 18 & Exh. D, p. 2. The grievance regarding the events that occurred on May 25 and 27,
2024, filed timely on May 27, was entitled “Retaliation” and given the grievance number
MS-0214-24. Tapia Decl. ¶ 19 & Exh. E, pp. 2-4. The records submitted by Defendants
reflect that the IGP clerk determined both grievances to be alleging harassment by a
DOCCS employee and thus passed them directly on to the facility superintendent. Tapia
Decl., Ex. D, p. 2 & Ex. E, p.1.
On October 22, 2024, a decision denying MS-0190-24, regarding Plaintiff’s hand
being slammed was issued. 	Tapia Decl., Ex. D. 	As of June 6, 2025, over a year after
receiving the grievance, the facility superintendent had still not issued a decision on the
grievance entitled “Retaliation.” 	Tapia Decl. at ¶ 19. Thus, Plaintiff had the right to
appeal those grievances to the “final appellate level of the [IGP,]” the CORC under
DOCCS regulations. Sequin Decl. at ¶¶ 6-7. Records maintained by CORC indicate that
no appeal was filed with regard to either grievance. Id. at Ex. A. Thus, Defendants have
met their burden of proving that Plaintiff has failed to exhaust his administrative
remedies.
3. Whether Plaintiff’s Failure to Exhaust Administrative Remedies May be Excused
“A prisoner need not exhaust remedies if they are not ‘available.’” Ross v. Blake,
578 U.S. 632, 636 (2016). Though Defendants have met their burden of proving that
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DOCCS has administrative remedies in place, Plaintiff has the opportunity to prove they
were not properly “available” to him, excusing his duty to exhaust such remedies.
An administrative procedure is “unavailable” when (1) “it operates as a
simple dead 	end – with officers 	unable or consistently unwilling to
provide any relief to aggrieved inmates;” (2) the scheme is “so opaque that
it becomes, practically speaking, incapable of use,” meaning that “some
mechanism exists to provide relief, but no ordinary prisoner can discern or
navigate it;” or (3) “when prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation,
or intimidation.
Dickinson v. York, 828 F. App’x 780, 782 (2d Cir. 2020) (summary order) (quoting Ross
v. Blake, 578 U.S. at 643-644).
It is unclear whether Plaintiff contends that he file an appeal regarding the hand
slamming grievance. His opposition never specifically identifies an appeal having been
filed as to that grievance. 	He provides correspondence indicating that several of his
grievances had not been timely responded to, which, to his mind, prevented him from
appealing, but this grievance (MST 0199-24) is not one of the grievances identified in
that correspondence. See Pl.’s Opp. at p. 9. There is no copy of the appeal form offered
or any correspondence regarding the status of any appeal, as Plaintiff did with other
grievances. 	“In short, given the lack of evidence that Plaintiff’s appeal to CORC was
ever filed, or ever followed up on, it is not that the full scope of administrative remedies
was not available to Plaintiff – rather, Plaintiff failed to fully exhaust the administrative
remedies available to him.” Shabazz v. Bailey, 2023 WL 5779533, at *7 (N.D.N.Y. June
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28, 2023), report and recommendation adopted, 2023 WL 5622049 (N.D.N.Y. Aug. 31,
2023) (internal quotation, alteration, and citation omitted).
Plaintiff also generally argues that the grievance process was not properly
functioning at Mid-State during the relevant time. 	Id. at pp. 20 & 22. 	Courts in this
circuit have consistently held that such conclusory statements are insufficient to defeat
summary judgment. 	Lurch v. Bui, 2020 WL 8450543, at *4 (N.D.N.Y. Dec. 8, 2020),
report and recommendation adopted sub nom. Lurch v. Jones, 2021 WL 392486
(N.D.N.Y. Feb. 4, 2021) (citing cases). Dismissal of any excessive force claim related to
events on May 1, 2024 as unexhausted, therefore, is appropriate.
The Court reaches a different conclusion with respect to the grievance concerning
events of May 25. As to that, the Court finds that at the very least there are questions of
fact as to whether remedies were available to Plaintiff. 	On May 27, Plaintiff filed a
grievance alleging retaliation and an assault by Mastraccio. 	Tapia Decl., Ex. E at p. 2.
That grievance was processed as a Code 49 grievance and forwarded directly to the
facility Superintendent. 	Id. at p. 1. 	As of the date of Tapia’s Declaration, the
Superintendent had not yet issued a decision as to the grievance. 	Tapia Decl. at ¶ 19.
That was more than a year after the filing of the grievance. 	Plaintiff made numerous
inquiries of facility grievance staff regarding the status of the grievance and was told that
the matter was admittedly overdue for a decision, Pl.’s Opp. at p. 9, and that “[w]hen the
Supt. responds you may appeal.” Id. at p. 11. The latter direction would appear to be an
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instruction from grievance staff that Plaintiff could not yet appeal, even though DOCCS
regulations would seem to have permitted him to do so. 	See 7 N.Y.C.R.R. § 701.8(g).
Here, a reasonable individual would not have taken it upon himself to utilize the
provisions of section 701.8(g) when he had been told that he could not yet appeal. At the
very least this creates a question of fact regarding whether the grievance process was so
opaque or had been misrepresented to Plaintiff such as to make it unavailable to Plaintiff
with respect to this grievance.
Further discovery regarding the exhaustion issue is warranted and so the Court
recommends that the Motion for Summary Judgment be denied with leave to refile.
IV. APPOINTMENT OF COUNSEL
Also pending are two Motions for the Appointment of Counsel. Dkt. Nos. 38 &
42. A prior motion for appointment of counsel was denied. Dkt. No. 8.
A number of factors must be carefully considered by the Court in ruling upon such
a motion:
[The Court] should first determine whether the indigent’s
position seems likely to be of substance. If the claim meets
this threshold requirement, 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 th[e]
case why appointment of counsel would be more likely to
lead to a just determination.
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Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994) (quoting Hodge
v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986)) (internal quotation marks omitted).
This is not to say that all, or indeed any, of these factors are controlling in a particular
case. Rather, “each case must be decided on its own facts.” Velasquez v. O’Keefe, 899
F. Supp. 972, 974 (N.D.N.Y. 1995) (citing Hodge v. Police Officers, 802 F.2d at 61). The
Court must consider the issue of appointment carefully because “every assignment of a
volunteer lawyer to an undeserving client deprives society of a volunteer lawyer available
for a deserving cause.” Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989).
Having weighed the above factors, appointment of counsel is not warranted at this
time. First, the case does not present novel or complex issues. Second, it appears that, to
date, Plaintiff’s lack of formal training has not prevented him from effectively litigating
this action. He has thus far demonstrated an ample ability to litigate this matter, including
responding in opposition to Defendants’ motions. 	Finally, the Court notes this matter
remains in the initial stages of litigation and an answer to the Complaint has not yet been
filed. These reasons counsel against appointment of counsel at this time. Jones v. Agata,
2025 WL 2494906, at *6 (N.D.N.Y. Aug. 29, 2025).
V. CONCLUSION
For the reasons stated herein, it is hereby
RECOMMENDED, that the Motion (Dkt. No. 39) be GRANTED in part and
DENIED in part as set forth above; and it is further
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RECOMMENDED, that the following claims be dismissed:
1) Eighth Amendment sexual assault claim;
2) Eighth Amendment excessive force claim regarding an incident on May 1, 2024;
and
3) Fourteenth Amendment due process claim against Defendant Ciancio; and it is
ORDERED, that Plaintiff’s Motions for Appointment of Counsel (Dkt. Nos. 38
& 42) are DENIED; and it is further
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	serve 	a 	copy 	of 	this 	Report-
Recommendation and Order upon the parties to this action.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen (14) days within which
to file written objections to the foregoing report. Such objections shall be filed with the
Clerk 	of 	the 	Court. 	FAILURE 	TO 	OBJECT 	TO 	THIS 	REPORT 	WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs.,
892 F.2d 15 (2d Cir. 1989)); see also 28 U.S.C. § 636(b)(1); F ED . R. CIV . P. 72 & 6(a).
Date: 	February 2, 2026
Albany, New York
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