Holmes v. Penree et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JALEN HOLMES,
Plaintiff,
9:24-CV-1545
v. 	(AMN/DJS)
ANDREW ROSS and JOSHUA KNAPP,
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 Capitol
Albany, New York 12224
DANIEL J. STEWART
United States Magistrate Judge
REPORT-RECOMMENDATION and ORDER1
The allegations in this federal civil rights action concern an alleged excessive use
of force by Defendants Andrew Ross (“Ross”) and Joshua Knapp (“Knapp”) while
1 This matter was referred to the undersigned for a report-recommendation pursuant to 28 U.S.C. § 636(b) and
N.D.N.Y.L.R. 72.3(c).
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Plaintiff was incarcerated in the custody of the New York State Department of
Corrections and Community Supervision (“DOCCS”) at Mid-State Correctional Facility
(“Mid-State”). See Dkt. No. 1, Compl; Dkt. No. 7, p. 26. Defendants have now moved
for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56(a), seeking to
dismiss the Complaint based on Plaintiff’s failure to properly exhaust his administrative
remedies. Dkt. No. 25. Plaintiff opposed the Motion, Dkt. Nos. 28-29, and Defendants
have replied. Dkt. No. 30.
For the reasons that follow, the Court recommends that the Motion for Summary
Judgment be GRANTED.
I. BACKGROUND
The Complaint in this action is dated December 17, 2024 and was filed with the
Court on December 19, 2024. Compl. Following review under 28 U.S.C. § 1915(e) and
28 U.S.C. § 1915A, the sole remaining claim is an Eighth Amendment excessive force
claim against Defendants Ross and Knapp. Dkt. No. 7 at p. 26. Plaintiff alleges that on
December 10, 2024, Defendants Ross and Knapp physically assaulted him following a
legal call. Compl. at p. 7; see also Dkt. No. 28 at p. 1 (noting the incident occurred on
December 10, 2024). Plaintiff claims that he was tackled and jumped on by Defendants.
Compl. at p. 7. DOCCS has no record of a grievance being filed regarding this incident.
Dkt. No. 25-4, Tapia Decl., ¶ 16; Dkt. No. 25-2, Seguin Decl., ¶ 13.
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II. SUMMARY JUDGMENT STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is
appropriate only where “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” The moving party bears the burden
to 	demonstrate 	through 	“pleadings, 	depositions, 	answers 	to 	interrogatories, 	and
admissions on file, together with [ ] affidavits, if any,” that there is no genuine issue of
material fact. 	F.D.I.C. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
To defeat a motion for summary judgment, the non-movant must set out specific
facts showing that there is a genuine issue for trial, and cannot rest merely on allegations
or denials of the facts submitted by the movant. 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 cases).
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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 Res. 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). 	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
The Prison Litigation Reform Act (“PLRA”) provides, in pertinent part, that
“[n]o action shall be brought with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.”
42 U.S.C. § 1997e(a). 	The Supreme Court has held that “the PLRA’s exhaustion
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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. Howard v. Goord, 1999 WL 1288679, at *3 (E.D.N.Y. Dec.
28, 1999).2
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 §
2 Copies of unreported cases from Westlaw are attached to this opinion for Plaintiff’s reference.
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701.5(a)(1). An inmate may request an extension of the time limit within forty-five days
of the date of the alleged occurrence. 	Id. at § 701.6(g). 	The IGRC reviews and
investigates the formal complaint and then issues a written determination. 	Id. at §
701.5(b). Second, upon appeal of the IGRC decision, the superintendent of the facility
reviews the IGRC’s determination and issues a decision. Id. at § 701.5(c). Finally, upon
appeal 	of 	the 	superintendent’s 	decision, 	the 	Central 	Office 	Review 	Committee
(“CORC”) makes the final administrative determination. Id. at § 701.5(d). Only upon
exhaustion of all three levels of review may a prisoner seek relief in federal court.
Bridgeforth v. Bartlett, 686 F. Supp. 2d 238, 239 (W.D.N.Y. 2010) (citing, inter alia,
Porter v. Nussle, 534 U.S. at 524); see also Neal v. Goord, 267 F.3d 116, 121 (2d Cir.
2001), overruled on other grounds by Porter v. Nussle, 534 U.S. 516.
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. 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
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request 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 seven
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).
The Incarcerated Grievance Coordinator at Mid-State indicates that a search of
records shows no grievance filed regarding the alleged December 10, 2024 use of force.
Tapia Decl. at ¶ 17. 	Plaintiff appears to concede that there is no grievance on file at
Mid-State, though he contends this is the result of misconduct by DOCCS personnel.
Dkt. No. 28 at ¶ 7. 	On this record, therefore, Defendants have carried their burden to
show that Plaintiff did not exhaust his administrative remedies regarding the December
10, 2024 use of force.
A prisoner’s failure to exhaust administrative remedies may nonetheless be
excused if remedies were unavailable to the inmate. Ross v. Blake, 578 U.S. at 642. As
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the Supreme Court stated in Ross, “[a]n inmate . . . must exhaust available remedies, but
need 	not 	exhaust 	unavailable 	ones.” 	Id. 	The 	Court 	provided 	three 	potential
circumstances in which administrative remedies may be unavailable: (1) where the
administrative procedure technically exists but operates as a “dead end - with officers
unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) where
the administrative scheme is “so opaque that it becomes, practically speaking, incapable
of use”; and (3) where prison administrators “thwart inmates from taking advantage of
a grievance process through machination, misrepresentation, or intimidation.” 	Id. at
643-44. 	Plaintiff bears the burden of establishing that the grievance procedures were
unavailable within the meaning of Ross. Saeli v. Chautauqua Cnty., N.Y., 36 F.4th 445,
453 (2d Cir. 2022).
The record establishes that none of the Ross exceptions are applicable here. The
record 	shows 	that 	Plaintiff 	has 	filed 	numerous 	grievances 	at 	several 	different
correctional facilities, more than a dozen of which he has appealed to CORC. 	Seguin
Decl., Ex. A. DOCCS records show that he has filed at least thirteen grievances while
housed at Mid-State. 	Tapia Decl., Ex. B. 	Several of those grievances have been
appealed to CORC. 	Seguin Decl., Ex. A. 	This “shows that Plaintiff did not view the
filing of grievances as a dead end. It also demonstrates that he clearly understood [the]
inmate grievance policy and could navigate it when he wished to pursue a grievance. As
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such, the first two exceptions identified under Ross are not applicable here.” Walker v.
Ball, 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018), report and recommendation
adopted, 2018 WL 1406632 (N.D.N.Y. Mar. 20, 2018); see also Lurch v. Bui, 2020 WL
8450543, at *5 (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).
Plaintiff contends that he wrote “many grievances,” but that “none of them was
filed/submitted by the IGP interfering and obstructing the grievance process.” Dkt. No.
28 at ¶ 7. The record simply does not support this conclusory allegation. Plaintiff does
not allege how many grievances were filed regarding this incident or when he purports
to have done so. “Courts have consistently held . . . that an inmate’s general claim that
his grievance was lost or destroyed does not excuse the exhaustion requirement.”
Rosado v. Fessetto, 2010 WL 3808813, at *7 (N.D.N.Y. Aug. 4, 2010), report and
recommendation adopted, 2010 WL 3809991 (N.D.N.Y. Sept. 21, 2010) (citations
omitted); see also Rodriguez v. Cross, 2017 WL 2791063, at *7 (N.D.N.Y. May 9,
2017), report and recommendation adopted, 2017 WL 2790530 (N.D.N.Y. June 27,
2017) (“Courts in this Circuit have continuously held that mere contentions or
speculation of grievances being misplaced by officers do not create a genuine issue of
material fact when there is no evidence to support the allegations.”); Artis v. Dishaw,
2016 WL 11266599, at *7 n.13 (N.D.N.Y. Sept. 12, 2016), report and recommendation
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adopted, 2017 WL 1076343 (N.D.N.Y. Mar. 22, 2017) (finding that plaintiff’s failure
to exhaust was not excusable, in part because, while the plaintiff “state[d] that some
grievances were destroyed, but he has not submitted any copies of these grievances, nor
does he specify when he attempted to file them.”). 	Here, Plaintiff has not provided
copies of the grievances he claims to have filed regarding this incident, despite having
copies of various other correspondence he filed with the IGP regarding processing of
grievances. 	See Dkt. No. 29. 	Plaintiff’s purely conclusory allegation that he filed
grievances with no documentary proof is insufficient to withstand summary judgment.
See, e.g., Jackson v. Moore, 2023 WL 4710869, at *6 (N.D.N.Y. Apr. 14, 2023), report
and recommendation adopted, 2023 WL 4711091 (N.D.N.Y. July 24, 2023) (citing
cases); Gough v. Morris, 2018 WL 7199494, at *4 (N.D.N.Y. Dec. 14, 2018), report
and 	recommendation 	adopted, 	2019 	WL 	416150 	(N.D.N.Y. 	Feb. 	1, 	2019)
(recommending that summary judgment be granted when plaintiff’s opposition failed to
“provide copies of the any [sic] alleged grievances regarding this incident.”); Sankara
v. Montgomery, 2018 WL 4610686, at *8 (N.D.N.Y. June 25, 2018), report and
recommendation adopted, 2018 WL 3408135 (N.D.N.Y. July 13, 2018).
Moreover, DOCCS records indicate that grievances have been filed by Plaintiff
at Mid-State concerning alleged issues with medical care being provided, retaliation,
and having his hand slammed. Tapia Decl. at Ex. B. In light of the fact that such serious
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claims raised in grievances were repeatedly processed at Mid-State, Plaintiff has offered
no admissible evidence demonstrating that the grievances at issue here related to the
December 10, 2024 use of force simply would not be processed.
Even if the Court found a question of fact about whether Plaintiff had attempted
to file a facility level grievance, summary judgment is available for an alternative reason
not raised by the Defendants. While Plaintiff claims that he wrote “many grievances”
about the December 10, 2024 incident that were not processed, Dkt. No. 28 at ¶ 7, the
timeline demonstrates that he could not have fully exhausted his administrative remedies
prior to commencing this action.
As 	noted 	above, 	the 	grievance 	process 	within 	DOCCS 	is 	multi-layered.
“Complete exhaustion of the above administrative remedies through the highest level
for each claim is required.” 	Veloz v. New York, 339 F. Supp. 2d 505, 514 (S.D.N.Y.
2004), aff’d, 178 F. App’x 39 (2d Cir. 2006). “To the extent a civil rights claim must
be exhausted by the grievance process, completion of the three-tiered process, through
and including a final decision by the CORC, must be completed before an action
asserting that claim may be filed in court.” Haywood v. Fuller, 2019 WL 2442142, at
*3 (N.D.N.Y. June 12, 2019) (citing cases) (emphasis added). At the facility level, the
IGP provides for a minimum of 16 days within which to attempt to resolve a grievance.
See Tapia Decl. at ¶ 6. The process then provides for multiple appeal levels each with
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designated amounts of time within which the appeals should be processed. Id. at ¶¶ 6-
7. The undisputed record here, however, is that the Complaint was filed just nine days
after the alleged incident. It was, therefore, impossible, even if Plaintiff had timely filed
a grievance, for the entire grievance process to have been completed before he filed this
action. 	Under any set of facts, this Complaint was filed before the grievance process
had been afforded the opportunity to run its course and summary judgment is
appropriate.
For these reasons, the Court recommends that the Defendants’ Motion for
Summary Judgment be granted based on Plaintiff’s failure to exhaust his administrative
remedies.
IV. APPOINTMENT OF COUNSEL
Plaintiff has also filed a Motion for Appointment of Counsel. 	Dkt. No. 31.
Plaintiff identifies three reasons for the appointment of counsel: 1) his inability to afford
private counsel; 2) the complexity of the issues presented; and 3) the fact that he is
“overwhelmed” with the number of cases he is litigating. Id. at p. 1. None of these is a
basis for the appointment of counsel.
Appointment of counsel must be done carefully in order to preserve the “precious
commodity” of volunteer lawyers for those litigants who truly need a lawyer’s
assistance. Cooper v. A. Sargenti, Inc., 877 F.2d 170, 172-73 (2d Cir. 1989). The factors
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informing the decision of whether to exercise discretion in favor of appointing counsel
were summarized by the Second Circuit in this manner:
In deciding whether to appoint counsel . . . , the district judge 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 that case why
appointment of counsel would be more likely to lead to a just determination.
Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986).
On this record, the appointment of counsel is not warranted. 	Contrary to
Plaintiff’s assertion, the issues presented in this case are not particularly novel or
complex. They involve a single incident, with only two Defendants, and a legal claim
as to which the law is fairly clearly established. 	To date, Plaintiff has not shown an
inability to litigate this matter on his own, having filed multiple motions and several
submissions in response to Defendants’ Motion. 	Finally, the fact that Plaintiff has
chosen to litigate multiple matters is not an independent basis for appointment of
counsel. Plaintiff’s Motion, therefore, is denied.
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V. CONCLUSION
WHEREFORE, it is hereby
RECOMMENDED, that the Motion for Summary Judgment (Dkt. No. 25) be
GRANTED based on Plaintiff’s failure to exhaust administrative remedies; and it is
ORDERED, that the Motion for the Appointment of Counsel (Dkt. No. 31) is
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)3 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
3 If you are proceeding pro se and are served with this Order by mail, three additional days will be added to the
fourteen-day period, meaning that you have seventeen days from the date the order was mailed to you to serve and
file objections. F ED. R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday.
FED. R. C IV. P. 6(a)(1)(C).
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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: 	January 9, 2025
Albany, New York
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