Schmiege v. New York State et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
BRIAN E. SCHMIEGE,
Plaintiff,
v.
No. 9:22-CV-1371
DEPUTY SECURITY STACHOWSKI, et al., 	(ECC/PJE)
Defendants.
_____________________________________
APPEARANCES: 	OF COUNSEL:
Brian E. Schmiege
Plaintiff pro se
New York State Attorney General 	AIMEE COWAN, ESQ.
Syracuse Regional Office 	Assistant Attorney General
300 South Street – Suite 300
Syracuse, New York 13202
Attorney for defendants
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER1
Plaintiff pro se Brian E. Schmiege (“plaintiff”) who was, at the time he commenced
this action and when defendants filed their motions for summary judgment,2 an inmate in
the custody of the New York State Department of Corrections and Community Supervision
(“DOCCS”), brings this action pursuant to 42 U.S.C. § 1983 for alleged violations of his
civil 	rights. 	Plaintiff 	contends 	that 	defendants 	Deputy 	Security 	Stachowski 	(“DSS
Stachowski”); Marren, Correction Officer (“Marren”) (“C.O.”); Pfluger, C.O. (“Pflueger”);
1 This matter was referred to the undersigned for Report-Recommendation and Order pursuant to 28 U.S.C.
§ 636(b) and N.D.N.Y. L.R. 72.3(c).
2 Plaintiff was released from DOCCS custody on July 23, 2025. See Dkt. No. 90.
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Howard, C.O. (“Howard”); Hamilton, C.O. (“Hamilton”); Harvey, C.O. (“Harvey”); and Vital,
C.O. (“Vitale”), violated his constitutional rights under the First and Eighth Amendments.
See Dkt. No. 1 at 5-10.3 Presently before the Court is defendant Hamilton’s motion for
summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56.
See Dkt. No. 83. For the following reasons, it is recommended that Hamilton’s motion be
granted in part and denied in part.
I. Failure to Respond
On April 28, 2025, both the Court and defendants notified plaintiff of the pendency
of Hamilton’s motion and the consequences of failing to respond. 	See Dkt. Nos. 83-6,
84. On May 27, 2025, at plaintiff’s request, the Court granted him an extension of time to
file a response until July 28, 2025. See Dkt. Nos. 88, 89. On July 25, 2025, at plaintiff’s
request, the Court granted plaintiff a second extension of time to file a response until
August 27, 2025. 	See Dkt. Nos. 90, 91. 	To date, plaintiff has failed to respond to
Hamilton’s motion.
“The fact that there has been no response to a summary judgment motion does
not . . . mean that the motion is to be granted automatically.” Calderon v. Doe, No. 9:20-
CV-0645 (GLS/CFH), 2021 WL 6278740, at *1 (N.D.N.Y. Nov. 24, 2021), report and
recommendation adopted, No. 9:20-CV-0645 (GLS/CFH), 2022 WL 43918 (N.D.N.Y. Jan.
5, 2022) (quoting Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)). 	“Even in the
absence of a response, defendant is entitled to judgment only if the material facts
demonstrate his entitlement to judgment as a matter of law.” 	Id. (citing Champion, 76
3 Plaintiff initially sought to bring this complaint against several other individuals and entities. See Dkt. No.
1. The matter was transferred from the Western District of New York, and on initial review, the Court sua
sponte dismissed numerous claims pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). See
Dkt. Nos. 4, 10.
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F.3d at 486; Fed. R. Civ. P. 56(c). “A verified complaint is to be treated as an affidavit . . .
and [may] be considered in determining whether material issues of fact exist[.]” 	Id.
(quoting Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995), abrogated on other grounds
by Tangreti v. Bachmann, 983 F.3d 609 (2d Cir. 2020)). Plaintiff’s complaint is signed and
includes a statement wherein plaintiff certifies that the information contained in the
complaint is “to the best of [his] knowledge, information, and belief.” 	Dkt. No. 1 at 11.
Therefore, the undersigned will accept the pleading as an affidavit to the extent that the
statements in plaintiff’s complaint are based on plaintiff’s personal knowledge or are
supported by the record. See Berry v. Marchinkowski, 137 F.Supp. 3d 495, 530 (S.D.N.Y.
2005) (noting that in light of special solicitude, courts may consider unsworn assertions
on a motion for summary judgment where they are based on the plaintiff's personal
knowledge).
Moreover, “the facts set forth in defendant's Rule 56.1(a) Statement of Material
Facts are accepted as true as to those facts that are not disputed by [plaintiff’s complaint],”
deposition testimony, and opposition to defendant Hamilton’s motion for summary
judgment. 	Calderon, 2021 WL 6278740, at *1 (citing N.D.N.Y. L.R. 56.1(b) (“The Court
may deem admitted any properly supported facts set forth in the Statement of Facts that
the opposing party does not specifically controvert.”)); see Dkt. Nos. 1, 57, 64.
II. Facts4
A. Undisputed Facts
4 Hamilton’s motion for summary judgment references and cites evidence not submitted as part of his
motion papers and contained elsewhere in the record. 	See generally Dkt. No. 83. 	“[T]he Court may
consider evidence outside the pleadings on a motion for summary judgment.” Sullivan v. Maha, No. 16-CV-
552 (FPG), 2018 WL 3962818, at *2 (W.D.N.Y. Aug. 17, 2018) (citing Fed. R. 56).
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Plaintiff was incarcerated at Auburn Correctional Facility (“Auburn CF”) in July
2022 and August 2022, and at Five Points Correctional Facility (“Five Points CF”) at
different times between June 4, 2021, and September 19, 2023. See generally Dkt. No.
57-5; Dkt. No. 57-7; Dkt. No. 57-9. Auburn CF and Five Points CF had fully functioning
grievance procedures in July 2022 and 2022, respectively. See Dkt. No. 57-5 at 1-2, ¶5;
Dkt. No. 57-7 at 1-2, ¶5. Plaintiff was familiar with the grievance and appeals process at
Auburn CF. See Dkt. No. 83-5 at 5; Dkt. No. 57-14 at 36. While incarcerated at Auburn
CF and Five Points CF, plaintiff filed seventy-six facility-level grievances. 	See Dkt. No.
57-5 at 2, ¶8; Dkt. No. 57-7 at 2, ¶8. Additionally, plaintiff has appealed eighty-one facility-
level grievances to CORC. See Dkt. No. 57-9 at 2, ¶8. Yet, plaintiff has not appealed any
grievance to CORC alleging excessive force at Auburn CF. See Dkt. No. 57-9 at 2-3, ¶9.
Plaintiff did not file any grievances at either Auburn CF or Five Points CF alleging
that he was assaulted or Hamilton used excessive force against him on July 27, 2022,
while incarcerated at Auburn CF. Dkt. No. 83-5 at 3-4; Dkt. No. 57-14 at 63; Dkt. No. 57-
5 at 2; Dkt. No. 57-7 at 2. Plaintiff did file a grievance on July 27, 2022, but the grievance
does not reference “any incident during which [he] contends that excessive force was
used against him on July 27, 2022, while incarcerated at Auburn” CF. Dkt. No. 83-5 at 3;
see Dkt. No. 57-14 at 70-71.
B. Plaintiff’s Facts
Plaintiff testified that on March 19, 2020, Marren sexually assaulted him, and
Marren, Harvey, and two other C.O.s5 physically assaulted him when he tried to defend
5 Plaintiff does not identify the two other C.O.s who allegedly assaulted him in March 2020.
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himself. 	See Dkt. No. 57-14 at 64-68, 124-25. 	Plaintiff states that he was knocked
unconscious during the assault and spent sixty-seven days in a coma. See id. at 67-68.6
On July 27, 2022, Pflueger, Marren, Vitale, Howard, and Harvey assaulted plaintiff
in his cell. See Dkt. No. 1 at 6; see Dkt. No. 57-14 at 42, 47-48. Plaintiff claims that these
defendants tackled him to the floor, physically assaulted him, and shaved off all of his
hair. See id. After the alleged assault, plaintiff was told that he “better hold down the ass
whoopin [sic] they just gave [him] or [he’ll] be killed [and] have a weapon planted on [his]
person or [his] cell [sic].”7 Dkt. No. 1 at 6, 28. 	Pflueger, Marren, Hamilton, and Harvey
were present when he “was told to hold it down, the ass whooping [he] had just gotten,
and that they . . . wouldn’t retaliate, [he] wouldn’t get a ticket, and that they wouldn't, in
short terms, fucking kill [him] if [he] just held it down and did the right thing.” Dkt. No. 57-
14 at 58. Plaintiff states that the C.O.s who assaulted him in March 2020 were the same
C.O.s who assaulted him on July 27, 2022. See Dkt. No. 1 at 8, ¶1.
On August 5, 2022, plaintiff wrote a letter to DOCCS Commissioner Annucci
regarding the July 27, 2022, assault, informing him that these were the same C.O.s who
assaulted him in March 2020. See Dkt. No. 1 at 27. On August 7, 2022, plaintiff wrote a
letter to nonparty Captain Gilmore requesting an interview with the Office of Special
Investigations (“OSI”) “for an assault that was done to [him].” Id. at 23.
Plaintiff states that on August 8, 2022, nonparty inmate Quick approached him and
“threatend [sic] to break [his] jaw [and] kill [him] because the C.O.’s [sic] were complaining
to him ‘Quick’ [sic] that [he] was a problem [and] [he was] making D-Block-5 company
‘hot’ by dropping grievances [and] writing letters to Deputy Security Stachowski [and]
6 Plaintiff does not, in this action, seek to pursue any claims arising directly from the 2020 incident.
7 Plaintiff does not specify who made this statement.
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Superintendent Corey about [him] being a victim of a racist hate crime [and] [him] being
violently assaulted by C.O.’s [sic] back on 3/19/2020.” Dkt. No. 1 at 7-8. On August 11,
2022, plaintiff wrote a letter to Deputy Security Stachowski claiming that he feared for his
“life [and] safety due to being targeted [and] harassed by the same C.O.’s [sic] that beat
[him] into a coma on 3/19/2020 [and] now they are sending prisoners after [him].” Id. at
31.
On August 12, 2022, Howard, Hamilton, Marren, Vitale, and Pflueger ordered
Quick to “assault [plaintiff] [and] stab [him] to death.” Dkt. No. 1 at 8. Plaintiff witnessed
Harvey and Hamilton approach nonparty inmate Quick’s cell and speak to Quick, but he
could not hear their conversation. See Dkt. No. 57-14 at 101-103. Approximately twenty
to thirty minutes later, Quick assaulted plaintiff and stabbed him nine times. 	See id. at
101-05. At the time of the assault, Marren, Harvey, Hamilton, Vitale, and Pflueger were
standing at the end of company, where plaintiff’s cell was located. See id. at 94-95.
On August 31, 2022, plaintiff filed a grievance at Five Points CF alleging that on
August 12, 2022, he was
violently assaulted & [sic] stabbed #9 [sic] time’s [sic] by a prisoner at
Auburn C.F. who was told to kill [him] by orders of Security Staff at Auburn
C.F. that [he] sued & [sic] was awarded a huge settlement at trial on
8/10/2022 & [sic] the Security Staff [he] sued [were] also facing criminal
charges from the 3/19/2020 incident that this lawsuit arose from . . .
Dkt. No. 57-15 at 4. However, the facility Superintendent denied the grievance. See id.
at 5. Plaintiff appealed to CORC, but CORC upheld the Superintendent’s determination
and denied his grievance. See id. at 1.
C. Hamilton’s Statement of Material Facts
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Hamilton did not assault “plaintiff on July 27, 2022, or any other day.” Dkt. No. 83-
5 at 2 (citing Dkt. No. 83-3 at 1). Hamilton was not at Auburn CF on July 27, 2022, and
did not interact with plaintiff that day. See id. (citing Dkt. No. 83-3 at 1). On July 27, 2022,
Hamilton’s shift was covered by C.O. Denny Peebles (“Peebles”). See id. (citing Dkt. No.
83-3 at 2). Hamilton’s bi-weekly timecard for the period July 21, 2022, to July 27, 2022,
states under the section labeled “July 27, 2022,” “Swap Off Peebles,” meaning that
Peebles was assigned to work Hamilton’s shift on that particular day. Id. (citing Dkt. No.
83-3 at 1-2).
Plaintiff “did file a grievance alleging that he was assaulted by another incarcerated
individual on August 12, 2022, because the incarcerated individual was ‘told to kill [him]
by orders of security staff at Auburn . . . .’” Dkt. No. 83-5 at 4 (quoting Dkt. No. 57-15 at
4). The grievance does not refer to any defendants in this action “and does not contend
that the August 12, 2022, assault occurred in retaliation for letters he wrote in August
2022.” Id. “The grievance makes no mention as to who he alleges were involved either
in allegedly directing another incarcerated individual to assault him, or who he alleges he
‘sued and was awarded a huge settlement at trial.’” 	Id. (quoting Dkt. No. 57-15 at 4).
“Hamilton was not interviewed or discussed at all in conjunction with the investigation of
plaintiff's grievance.” Id. “The Superintendent’s response [to plaintiff’s August 12, 2022,
grievance] specifically states that plaintiff was uncooperative with an interview, refusing
to speak with the sergeant, and that no staff were identified in his grievance, so his
allegations could not be substantiated.” 	Id. at 4-5 (citing Dkt. No. 57-15 at 5). 	“When
plaintiff was interviewed by supervisory staff, he refused to speak to them or provide any
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further information to assist them in their investigation.” Id. at 5 (citing Dkt. No. 57-15 at
6).
III. Arguments
Hamilton argues that he is entitled to summary judgment as matter of law because
plaintiff failed to exhaust his administrative remedies before commencing this action. See
Dkt. No. 83-1 at 4-12. 	Hamilton first addresses plaintiff’s Eighth Amendment excessive
force claim. 	See id. at 7-8. 	Hamilton argues that Auburn CF had a fully-functioning
grievance procedure in July 2022, and Five Points CF had a fully-functioning grievance
procedure in 2022 generally, but plaintiff did not file a grievance alleging excessive force
on July 27, 2022, at either Auburn CF or Five Points CF. See id. at 7; Dkt. No. 57-5 at 1-
2; Dkt. No. 57-7 at 1-2. 	Hamilton also argues that the letters plaintiff wrote to DOCCS
Commissioner Annucci regarding the alleged July 27, 2022, assault, and to Captain
Gilmore regarding an OSI interview are insufficient to satisfy the exhaustion requirement.
See id. Hamilton asserts that “plaintiff unequivocally testified that he was familiar with the
grievance and appeals process and had previously filed other grievances about different
issues,” and never alleged that the grievance procedures at Auburn CF or Five Points CF
“were ‘dead ends’ or ‘so opaque’ as to be rendered incapable of use.” Id. at 8. (first citing
Dkt. No. 57-14 at 36, then citing Dkt. No. 80 at 30-31). As such, Hamilton argues that the
first and second Ross exceptions are inapplicable to this claim. Id. at 8.
Hamilton next addresses plaintiff’s First Amendment retaliation claim. 	See Dkt.
No. 83-1 at 8-12. Hamilton concedes that plaintiff filed a grievance following the August
12, 2022, assault, but asserts that the grievance (1) fails to name Hamilton; (2) “does not
contend that the August 12, 2022, assault occurred in retaliation for the letters [plaintiff]
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wrote in August 2022”; and (3) does not “alleg[e] that [Hamilton] retaliated against him.”
Id. at 8-9 (citing Dkt. No. 57-5 at 3; Dkt. No. 57-7 at 3).
Hamilton argues that “[w]here a facility is not properly alerted to the existence of a
claim and therefore fails to investigate it, an inmate has not substantially exhausted
administrative remedies regarding the claim.” Dkt. No. 83-1 at 9 (citing Solano v. Aubin,
No. 9:20-CV-1378 (BKS/ML), 2023 WL 5200397 (N.D.N.Y. Aug. 14, 2023) (citing Albritton
v. Morris, No. 13-CV-3708, 2018 WL 1609526 (S.D.N.Y. Mar. 29, 2018))). 	Hamilton
argues that “plaintiff’s grievance did not lend itself to a review of, or decision on, any
retaliation claims made against any defendants, including Officer Hamilton.” 	Id. at 10
(citing Dkt. No. 57-15 at 4.). Hamilton claims that plaintiff’s grievance “makes no mention
. . . as to who he alleges were involved either in allegedly directing another incarcerated
individual to assault him, or who he alleges he ‘sued and was awarded a huge settlement
at trial.’” 	Id. (citing Dkt. No. 57-15 at 4.). 	Hamilton further claims that “[t]he grievance
packet, which details the facility’s response, confirms that the facility was not properly
alerted to the existence of a retaliation claim against those defendants and therefore failed
to investigate it.” Id. at 10-11. Hamilton asserts that he was not interviewed after plaintiff
filed his grievance and “the Superintendent’[s] response specifically states that plaintiff
was uncooperative with an interview, refusing to speak with the sergeant, and that no staff
were identified in his grievance, so his allegations could not be substantiated.” Id. at 11
(citing Dkt. No. 57-15 at 5). 	Hamilton also argues that the first and second Ross
exceptions are inapplicable to this claim because “there is nothing in the record to suggest
that DOCCS’ grievance procedure was a dead end, that corrections officials prevented
plaintiff from filing a grievance, or that the grievance procedure was so confusing that
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plaintiff could not discern the necessity of appealing to CORC.” 	Id. (internal quotation
marks omitted).
Alternatively, Hamilton argues that plaintiff’s claims should be dismissed in their
entirety on the merits. See Dkt. No. 83-1 at 12-19. Hamilton argues that plaintiff’s Eighth
Amendment excessive force must fail because he was not working at Auburn CF on July
27, 2022, and therefore, he could not have assaulted plaintiff that day. See id. at 12. In
support of this argument, Hamilton submits a copy of his bi-weekly timecard indicating
that the notation under July 27, 2022, states, “Swap Off Peebles,” meaning that CO
Peebles covered his shift that day. Id. (quoting Dkt. No. 83-4).
Finally, Hamilton argues that plaintiff cannot establish all three elements needed
to succeed on a First Amendment retaliation claim. See Dkt. No. 83-1 at 14-19. 	First,
Hamilton contends that plaintiff has not demonstrated that he engaged in a protected
activity. See id. at 15-16. Hamilton notes that Plaintiff testified that he and other officers,
“incited” another inmate to attacked him “in retaliation for letters [he] wrote in August 2022
that related to a March 2020 incident.” Id. at 15 (quoting Dkt. No. 57-14 at 112). Hamilton
refutes plaintiff’s testimony, arguing that when plaintiff was asked to clarify who he sent
the August 2022 letters to, plaintiff could not specify whether the letters were written to
Deputy Superintendent Stachowski, Superintendent Cory, or his counselor. See id. at 15-
16. 	Additionally, Hamilton argues that the August 2022 letters were never delivered or
received by Deputy Superintendent Stachowski or Superintendent Cory. 	See id. at 16
(citing Dkt. No. 57-4 at 2).
Second, Hamilton argues that plaintiff failed to demonstrate that he took any
adverse action against plaintiff. 	Dkt. No. 83-1 at 16. 	Hamilton concedes that he was
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present at Auburn CF on August 12, 2022, and “assisted plaintiff after the incident while
other officers placed the other involved incarcerated individual in mechanical restraints,”
but denies that he “ever direct[ed] or request[ed] that another incarcerated individual
assault plaintiff.” Id. (citing Dkt. No. 83-3 at 2).
Third, Hamilton states that plaintiff has not demonstrated a casual connection
between his protected conduct and any adverse action that Hamilton took. See Dkt. No.
83-1 at 16-19. Hamilton asserts that he “is unaware of any complaints/grievances plaintiff
filed against him prior to August 12, 2022,” and “even if he was aware of” the eleven other
grievances plaintiff filed against other C.O.s in the four months prior to the August 12,
2022, incident, plaintiff has not established any basis that Hamilton would or did retaliate
on behalf of the other C.O.s. Id. at 18-19.
Plaintiff did not response to Hamilton’s motion.
IV. Legal Standards
On review of defendants’ motion for summary judgment, the facts will be related in
the light most favorable to plaintiff as the nonmoving party. See Rattner v. Netburn, 930
F.2d 204, 209 (2d Cir. 1991) (“In assessing the record . . . to determine whether there is
a genuine issue as to any material fact, the court is required to resolve all ambiguities and
draw all factual inferences in favor of the party against whom summary judgment is
sought.”).
A motion for summary judgment may be granted “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV . P. 56(a). The moving party bears the burden of demonstrating
the absence of disputed material facts by citing to “the record, including depositions,
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documents, 	electronically 	stored 	information, 	affidavits 	or 	declarations, 	stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.” FED. R. CIV . P. 56(c). A fact is material if it “might affect the
outcome of the suit,” as determined by the governing substantive law; a “dispute about a
material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
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 (citation
omitted); see Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). 	“When ruling on a
summary judgment motion, the district court . . . 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) (citation omitted). Still, the nonmoving party 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) (per curiam)); see also
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (“[M]ere conclusory allegations or
denials . . . cannot by themselves create a genuine issue of material fact where none
would otherwise exist.”) (citation omitted).
Where a party seeks judgment against a pro se litigant, or a pro se litigant moves
for summary judgment, the Court must afford the pro se litigant special solicitude. 	See
Treistman, 470 F.3d at 477. As the Second Circuit explained,
[t]here are many cases in which we have said that a pro se litigant is
entitled to “special solicitude,” that a pro se litigant’s submissions must
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be construed “liberally,” and that such submissions must be read to raise
the strongest arguments that they “suggest[.]” At the same time, our
cases have also indicated that we cannot read into pro se submissions
claims that are not “consistent” with the pro se litigant’s allegations, or
arguments that the submissions themselves do not “suggest,” that we
should not “excuse frivolous or vexatious filings by pro se litigants,” and
that pro se status “does not exempt a party from compliance with
relevant rules of procedural and substantive law[ ]” . . . ..
Id. (citations omitted); see also Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191
(2d Cir. 2008) (“On occasions too numerous to count, we have reminded district courts
that when [a] plaintiff proceeds pro se, . . . a court is obligated to construe his pleadings
liberally.”) (citations and quotation marks omitted).
V. Discussion
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust any
available administrative remedies before bringing an action for claims arising out of their
incarceration. See 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, and whether they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002). 	Exhaustion is required even where the
prisoner seeks relief not available in the administrative grievance process, such as money
damages. See id. at 524. “To exhaust administrative remedies, the inmate must complete
the full administrative review process set forth in the rules applicable to the correctional
facility in which he is incarcerated.” 	Adams v. Annucci, 537 F. Supp. 3d 475, 477-78
(W.D.N.Y. 2021); see Jones v. Bock, 549 U.S. 199, 218 (2007) (explaining that “to properly
exhaust administrative remedies prisoners must complete the administrative review
process in accordance with the applicable procedural rules . . . rules that are defined not
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by the PLRA, but by the prison grievance process itself.”) (internal citations and
quotations omitted).
“Failure to exhaust administrative remedies under the PLRA is an affirmative
defense, and thus the defendants have the burden of proving that [the plaintiff's] claim
has not been exhausted[.]” Key v. Toussaint, 660 F. Supp. 2d 518, 523 (S.D.N.Y. 2009)
(citations omitted). A defendant satisfies this burden by “establishing . . . that a grievance
process exists[,]” and that the plaintiff failed to use the grievance procedure. Hubbs v.
Suffolk Cnty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015) (citing Mojias v. Johnson, 351
F.3d 606, 610 (2d Cir. 2003), and Snider v. Melindez, 199 F.3d 108, 114 (2d Cir. 1999)).
“However, once a defendant has produced reliable evidence that such remedies were
generally available, and the plaintiff nevertheless failed to exhaust those remedies, the
plaintiff must then counter the defendant’s proof by showing that, as to him or her, the
remedy was unavailable.” Coleman v. Nolan, No. 9:15-CV-40 (ATB), 2018 WL 4732778,
at *4 (N.D.N.Y. Oct. 2, 2018) (citing Smith v. Kelly, 985 F. Supp. 2d 275, 284 (N.D.N.Y.
2013)).
Once it is determined that a plaintiff has failed to exhaust his or her administrative
remedies, “the Court must assess whether administrative remedies were available to” the
plaintiff. 	Stephanski v. Allen, No. 9:18-CV-0076 (BKS/CFH), 2020 WL 806331, at *7
(N.D.N.Y. Jan. 22, 2020), report and recommendation adopted, 2020 WL 777268
(N.D.N.Y. Feb. 18, 2020). “[T]he ultimate burden of proof with respect to the exhaustion
defense remains, at all times, with the defendants.” Nelson v. Plumley, No. 9:12-CV-422
(TJM), 2015 WL 4326762, at *8 (N.D.N.Y. July 14, 2015) (citations omitted). 	However,
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“‘the burden of production’ may shift to a plaintiff when a court considers whether the
grievance process was unavailable[.]” Coleman, 2018 WL 4732778, at *4.
Here, there is no genuine dispute that, at all relevant times, DOCCS had in place
a three-step inmate grievance program. See 7 N.Y.C.R.R. § 701.5. First, the inmate must
file a complaint with the Inmate Grievance Resolution Committee (“IGRC”) within twenty-
one (21) calendar days of the alleged incident. See id. § 701.5(a). The IGRC then “has
up to 16 calendar days after a grievance is filed to resolve [the grievance] informally.” Id.
§ 701.5(b)(1). If there is no informal resolution, the IGRC conducts a hearing “within 16
calendar days after receipt of the grievance” and issues a written recommendation “within
two working days” after the conclusion of the hearing. Id. § 701.5(b)(2); (b)(3)(i).
Second, if the inmate is dissatisfied with the IRGC’s decision, the inmate may
appeal the IGRC’s decision to the facility’s superintendent. 	See 7 N.Y.C.R.R. §
701.5(c)(1). 	To initiate such appeal, the inmate “must complete and sign the appeal
section on the IGRC response form . . . and submit it to the grievance clerk within seven
calendar days after receipt of the IGRC’s written response.” Id. For matters concerning
institutional issues, “the superintendent shall render a decision on the grievance and
transmit said decision, with reasons stated, to the grievant, the grievance clerk, and direct
party, if any, within 20 calendar days from the time the appeal was received.” 	Id. §
701.5(c)(3)(ii). “If a [IRGC] decision is not implemented within 45 days, the grievant may
appeal to CORC citing lack of implementation as a mitigating circumstance.” 	Id. §
701.5(c)(4). 	Alternatively, “[i]f no appeal is filed upon denial by the IGRC, it will be
presumed that the grievant or direct party accepts the committee’s recommendation.” Id.
§ 701.5(c)(1).
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Third, the inmate may appeal the superintendent’s decision to the CORC. See 7
N.Y.C.R.R. § 701.5(d)(1)(i). 	To initiate an appeal to CORC, the inmate “must complete
and sign [the necessary forms] and submit [them] to the grievance clerk within seven
calendar days after receipt of the superintendent's written response to the grievance.” Id.
The IGRC Supervisor “must forward appeals within seven calendar days to . . . CORC.”
Id. § 701.5(d)(1)(ii). Upon receipt of an appeal, CORC “shall review each appeal, render
a decision on the grievance, and transmit its decision to the facility, with reasons stated,
for the grievant, the grievance clerk, the superintendent, and any direct parties within 30
calendar days from the time the appeal was received.” Id. § 701.5(d)(3)(ii). It is only after
CORC renders a final decision, and the inmate receives that final decision, that the
administrative remedies available to the inmate/claimant are exhausted. 	See Torres v.
Carry, 672 F. Supp. 2d 338, 344 (S.D.N.Y. 2009).
Viewing the evidence in the light most favorable to the plaintiff as the non-moving
party and affording him special solicitude, plaintiff failed to rebut or raise a question of
material fact regarding Hamilton’s assertion that plaintiff did not file a grievance or
properly exhaust his administrative remedies concerning his claim that he was subjected
to excessive force on July 27, 2022. 	See Wright, 554 F.3d at 266; see also Hicks, 593
F.3d at 166. 	Conversely, plaintiff raises a question of material fact as to whether Hamilton
retaliated against him on August 12, 2022. See id.
1. Excessive Force
Plaintiff alleges that Hamilton assaulted him on July 27, 2022. See Dkt. No. 1 at
6. Plaintiff testified that he was familiar with the grievance and appeal process at Auburn
CF and filed several grievances prior to July 27, 2022. 	See Dkt. No. 57-14 at 36.
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However, plaintiff conceded at his deposition that he did not file a grievance relating to
the July 27, 2022, assault. See id. at 63. The record contains a grievance dated July 27,
2022, but this grievance does not reference assault that allegedly took place that day.
See Dkt. No. 57-17. Rather, the grievance alleges that an “unknown C.O.” harassed and
targeted plaintiff over plaintiff’s haircut. Id. When asked about this inconsistency, plaintiff
testified, “Yeah, no, I didn’t mention the assault part. 	I do admit to that on the record. I
did not mention that in this.” Dkt. No. 57-14 at 71.
Plaintiff also testified, contradictorily, that he filed a grievance for excessive force
following the July 27, 2022, assault; was “pretty sure” and “almost certain” of doing so;
and claimed that he “over exhausted all my remedies in a formal fashion.” Dkt. No. 57-
14 at 64, 72; Dkt. No. 64 at 7. 	However, the record lacks any evidence supporting
plaintiff’s claims or indicating that plaintiff filed a grievance relating to the July 27, 2022,
assault. 	Plaintiff fails to state the date on which he filed his grievance or provide any
identifying information of the individual or office with whom he filed his grievance. Plaintiff
does not refute the declarations of IGP Supervisor Parmiter, IGP Supervisor Schultz, or
IGP Director Seguin that he filed no grievances against Hamilton at either Auburn CF or
Five Points CF alleging excessive force on July 27, 2022, or appealed any such grievance
to CORC. See Dkt. No. 57-5 at 2; Dkt. No. 57-7 at 2; No. 57-9 at 2.
This Court has granted summary judgment on exhaustion grounds where the
plaintiff alleged a “completely unsupported, unclear and vague implication that . . . he
attempted to file” a grievance, and the plaintiff “provided no specifics regarding when the
grievances were written, their content, or the steps he took to provide them to an officer
to send to the grievance office . . . [or] documentary evidence to corroborate the fact
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plaintiff attempted to file a grievance, such as follow-up correspondences . . . .” Simpson
v. Price, No. 9:19-CV-1413 (MAD/ATB), 2021 WL 7367083, at *9 (N.D.N.Y. Dec. 29,
2021), report and recommendation adopted, No. 9:19-CV-1413 (MAD/ATB), 2022 WL
336540 	(N.D.N.Y. 	Feb. 	4, 	2022); 	see 	also 	Jackson 	v. 	Moore, 	No. 	9:21-CV-1001
(GTS/ATB), 	2023 	WL 	4710869, 	at 	*4 	(N.D.N.Y. 	Apr. 	14, 	2023), 	report 	and
recommendation adopted, No. 9:21-CV-1001 (GTS/ATB), 2023 WL 4711091 (N.D.N.Y.
July 24, 2023) (granting summary judgment on exhaustion grounds where the plaintiff
made a conclusory allegation and did not include any direct evidence, documentary
evidence, or corroborating testimony about the underlying incident, when he filed his
grievance, who he filed his grievance with, or what steps he took to follow up on his
grievance after he did not receive a response); Cf. Johnson v. Owens, No. 9:20-CV-0982
(AMN/CFH), 2023 WL 5351017, at *7 (N.D.N.Y. Aug. 21, 2023) (denying summary
judgment 	on 	exhaustion 	grounds 	where 	the 	plaintiff’s 	grievance 	was 	unfiled 	and
unanswered, but the plaintiff detailed how he drafted two grievances, placed them on his
cell door for a corrections officer to pick up, and never received a response after being
“transferred to a different facility shortly after delivering his grievances to the corrections
officer . . . .”); Fann v. Graham, No. 9:15-CV-1339 (DNH/CFH), 2018 WL 1399331, at *6
(N.D.N.Y. Jan. 11, 2018), report and recommendation adopted, No. 9:15-CV-1339
(DNH/CFH), 2018 WL 1399340 (N.D.N.Y. Mar. 19, 2018) (citing Williams v. Correction
Officer Priatno, 829 F.3d 118, 126 (2d Cir. 2016)) (denying summary judgment on
exhaustion grounds where the plaintiff’s “grievances were submitted, but were unfiled and
unanswered[,]” and the plaintiff detailed the underlying allegations, submitted copies of
his grievance and notice to appeal to CORC, and expressed his desire to appeal);
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Stephanski, 2020 WL 806331, at *9 (denying summary judgment on exhaustion grounds
where the plaintiff supported his allegations with a proper response to the defendants’
statement of material facts, testimony under oath on two separate occasions, and some
corroborating documentary evidence).
Further, plaintiff has not corroborated his claim by providing a copy of any
grievance or grievance decision from a facility superintendent at Auburn CF or Five Points
CF regarding an incident of excessive force on July 27, 2022.8 See Dkt. No. 64 at 2; see
also, e.g., Gibbs v. Gadway, No. 9:19-CV-281 (GTS/DJS) 2019 WL 5191506, at *3, *5
(N.D.N.Y. Oct. 15, 2019), report and recommendation adopted, 2020 WL 1227156
(N.D.N.Y. 	Mar. 13, 2020) 	(concluding that the plaintiff’s 	conclusory 	claim 	alleging
exhaustion was subject to dismissal where copies of grievance appeals allegedly filed
were not submitted as evidence) (citing cases); Blake v. Porlier, No. 9:18-CV 1008
(DNH/CHF), 2019 WL 7484052, at *5 (N.D.N.Y. Oct. 4, 2019), report and recommendation
adopted, 	2020 	WL 58613 	(N.D.N.Y. 	Jan. 	6, 	2020) 	(same); 	see 	also 	Sankara 	v.
Montgomery, No. 9:16-CV-0885 (FJS/TWD), 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)
(“[The p]laintiff has submitted no documentary evidence whatsoever that supports his
conclusory assertion that he submitted grievances . . . or demonstrates any follow up on
8 There is an “expedited procedure for complaints raising bona fide issues of harassment[,]” which includes
claims of excessive force, “which bypasses the IGRC, and initially refers the grievance to the facility
superintendent or his designee for prompt review, investigation, and decision.” Smith v. Miller, No. 9:20-
CV-1435 (GTS/CFH), 2021 WL 6503602, at *2, n.6 (N.D.N.Y. Nov. 18, 2021), report and recommendation
adopted, No. 9:20-CV-1435 (GTS/CFH), 2022 WL 160312 (N.D.N.Y. Jan. 18, 2022) (quoting Ferguson v.
Mason, No. 9:19-CV-927 (GLS/ATB), 2021 WL 862070, at *2 (N.D.N.Y. Jan. 7, 2021), report and
recommendation adopted, 2021 WL 531968 (N.D.N.Y. Feb. 12, 2021) (citing 7 N.Y.C.R.R. § 701.8). Plaintiff
did not avail himself of the grievance procedure, expedited or otherwise. See generally Dkt. No. 1. Plaintiff
has not alleged, or demonstrated, that he filed a grievance, received a decision from the Superintendent,
or appealed to CORC. See id.
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his part when he allegedly received no response.”). As plaintiff did not file a grievance for
the July 27, 2022, assault, he failed to satisfy the first step of the inmate grievance
process, and, therefore, did not exhaust his administrative remedies for his claim alleging
excessive force. See 7 N.Y.C.R.R. § 701.5(a); Torres, 672 F.Supp. 2d at 344.
Even assuming, arguendo, that plaintiff demonstrated a question of fact that he
filed a grievance alleging excessive force arising out of the July 27, 2022, incident, the
record does not indicate that he attempted to fully exhaust at either Auburn CF or Five
Points CF. 	Plaintiff testified that he received a response to his grievance and appealed
the grievance all the way to CORC. See Dkt. No. 57-14 at 64. However, the record does
not contain copies of his grievance, the superintendent response, an appeal of the
superintendent response, or the CORC decision. 	See Gibbs, 2019 WL 5191506, at *3
(“In light of the documented proof that no such appeal was filed, such a conclusory
statement is insufficient to create a material question of fact on this Motion.”) (citations
omitted). Therefore, plaintiff has not satisfied the PLRA’s exhaustion requirements. See
Woodford v. Ngo, 548 U.S. 81, 93 (2006); see also Feliz v. Johnson, No. 9:17-CV-1294
(DNH/ATB), 	2019 	WL 	5197216, 	at 	*4 	(N.D.N.Y. 	June 	6, 	2019), 	report 	and
recommendation adopted, 2019 WL 3491232 (N.D.N.Y. Aug. 1, 2019) (“[I]f a plaintiff fails
to follow each of the required steps of the IGP, including receipt of a decision from CORC,
prior to commencing litigation, he has failed to exhaust his administrative remedies as
required under the PLRA.”) (citations omitted); Cf. Clark v. Gardner, No. 9:17-CV-0366
(DNH/TWD), 	2021 	WL 	1200328, 	at 	*25 	(N.D.N.Y. 	Mar. 	8, 	2021), 	report 	and
recommendation adopted, No. 9:17-CV-366, 2021 WL 1198199 (N.D.N.Y. Mar. 30, 2021)
(concluding that the plaintiff raised a question of fact as to whether he filed a grievance
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where the plaintiff submitted a sworn affidavit that he gave his grievance to a corrections
officer, mailed a copy of the grievance to his attorney, and provided copies of the
grievance and the cover letter sent to his attorney).
The record also contains letters that plaintiff wrote to DOCCS Commissioner
Annucci detailing the July 27, 2022, assault and to nonparty Captain Gilmore requesting
an interview with OSI. See Dkt. No. 1 at 23, 27. A liberal reading of these letters could
suggest that plaintiff is arguing that either the letter to Commissioner Annucci or his
request for an OSI investigation constitutes an informal complaint, such that Auburn CF
administrators were put on notice of plaintiff’s underlying excessive force allegations,
satisfying the exhaustion requirement. 	However, this argument also lacks merit. 	This
Court has previously held that
to the extent [the] plaintiff may suggest that an informal complaint to the
Office of Special Investigations constitutes proper exhaustion, such an
argument would undoubtedly be misplaced. It is well-established that any
informal resolution or relief outside of the administrative procedures does
not satisfy exhaustion requirements in the Second Circuit.
Haywood v. Fuller, No. 9:18-CV-01097 (MAD/DEP), 2019 WL 1639743, at *5 (N.D.N.Y.
Apr. 16, 2019), report and recommendation adopted, No. 9:18-CV-01097 (MAD/DEP),
2019 WL 2442142 (N.D.N.Y. June 12, 2019) (citing Macias v. Zenk, 495 F.3d 37, 43 (2d
Cir. 2007) (“Regardless of whether . . . informal complaints put the prison officials on
notice of his grievance ‘in a substantive sense’ . . . to satisfy the PLRA a prisoner must
also procedurally exhaust his available administrative remedies.”)), Day v. Chaplin, 354
F. App’x 472, 474 (2d Cir. 2009) (summary order) (noting that informal letters sent to
prison officials “do not conform to the proper administrative remedy procedures”); see
also Harris v. Travers, No. 9:20-CV-1482 (GTS/DJS), 2023 WL 4708122, at *4 (N.D.N.Y.
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June 12, 2023), report and recommendation adopted, No. 9:20-CV-1482 (GTS/DJS),
2023 WL 4708113 (N.D.N.Y. July 24, 2023) (“Informal complaints to prison officials do not
constitute proper exhaustion.”) (quoting Hale v. Rao, 768 F. Supp. 2d 367, 376 (N.D.N.Y.
2011)); see also James v. Doty, No. 9:17-CV-1145 (MAD/CFH), 2019 WL 1474309, at *5
(N.D.N.Y. 	Jan. 	4, 	2019), 	report 	and 	recommendation 	adopted, 	No. 	9:17-CV-1145
(MAD/CFH), 2019 WL 457694 (N.D.N.Y. Feb. 6, 2019) (holding that “because . . . letters
were sent to officials outside the grievance chain of command, they do not satisfy the
exhaustion requirement.). Therefore, to the extent plaintiff’s letters might be interpreted
to suggest that he intended the letter to Commissioner Annucci or an OSI investigation to
substitute for a formal IGRC grievance, these claims fail as such a letter, investigation
request, or informal complaint is insufficient to satisfy the exhaustion requirement.
2. Retaliation
On August 31, 2022, plaintiff wrote a letter titled “Grievance Complaint,” alleging
that “Security Staff at Auburn C.F.” directed the August 12, 2022, assault, and the C.O.s
who directed the attack were the same C.O.s who assaulted him in March 2020 and who
he sued on two separate occasions. 	Dkt. No. 57-15 at 4. 	Hamilton acknowledges that
“[p]laintiff did file a grievance following the August 12, 2022, assault.” Dkt. No. 83-1 at 8
(citing Dkt. No. 57-15). However, Hamilton argues that “plaintiff’s grievance fails to refer
to any of the defendants . . . and does not contend that the August 12, 2022, assault
occurred in retaliation for letters he wrote in August 2022. 	Further, he did not file any
grievances alleging that any officers retaliated against him.” 	Dkt. No. 83-1 at 8-9 (citing
Dkt. No. 57-5 at 2-3; Dkt. No. 57-7 at 2-3). Hamilton claims that plaintiff’s grievance also
does not allege who he sued and against whom he “‘was awarded a huge settlement at
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trial.’” Id. at 10 (quoting Dkt. No. 57-15 at 4). Hamilton asserts that “[w]here a facility is
not properly alerted to the existence of a claim and therefore fails to investigate it, an
inmate has not substantively exhausted administrative remedies regarding that claim.”
Id. at 9 (citing Solano, 2023 WL 5200397, at *7 (citing Albritton, 2018 WL 1609526)).
Hamilton also argues that he was not “interviewed or discussed at all in conjunction with
the investigation of plaintiff’s grievance.” Id. at 11.
The undersigned concludes that Hamilton’s argument is both legally and factually
incorrect. First, plaintiff is not required to identify the individuals he accused of misconduct
in the August 31, 2022, grievance. See Espinal v. Goord, 558 F.3d 119, 127 (2d Cir. 2009)
(citing Jones, 549 U.S. at 218) (“Where New York’s grievance procedures do not require
prisoners to identify the individuals responsible for alleged misconduct, neither does the
PLRA for exhaustion purposes.”)). 	Rather, New York State regulations require that “the
grievance . . . contain a concise, specific description of the problem and the action
requested and indicate what actions the grievant has taken to resolve the complaint, i.e.,
specific persons/areas contacted and responses received.” 7 N.Y.C.R.R. § 701.5(a)(2).
Second, Five Points CF and the CORC characterized the August 22, 2022,
grievance as one for retaliation. See Dkt. No. 57-15 at 1, 3, 5. The IGP decision states
that plaintiff’s grievance alleged that the August 12, 2022, assault occurred because
facility “security” told another inmate to kill plaintiff because “[he] filed a lawsuit against
staff and won.” 	Id. at 5. 	The Five Points CF “Case History and Record” repeats these
allegations. See id. at 3. The CORC decision, under “Title of Grievance,” lists “Security
Staff Ordered Assault At Auburn CF.” Id. at 1.
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Additionally, Hamilton states that Five Points CF was “not properly alerted to the
existence 	of 	a 	retaliation 	claim 	against 	those 	defendants 	and 	therefore 	failed 	to
investigate it.” Dkt. No. 83-1 at 11. However, the IGP decision states that Five Points CF
attempted to investigate plaintiff’s claims, but plaintiff was uncooperative, refused to
speak with the sergeant, and did not identify any facility staff involved in the incident. See
Dkt. No. 57-15 at 5. Hamilton conflates his argument of failure to investigate with plaintiff’s
refusal to cooperate with 	Five Points CF’s 	investigation and the 	Five Points CF
Superintendent’s conclusion that, “based on his investigation, [plaintiff’s] allegations could
not be substantiated.” Id.
As plaintiff appealed the August 22, 2022, grievance to CORC and received a final
decision 	from 	CORC, 	the 	undersigned 	concludes 	that 	plaintiff 	exhausted 	his
administrative remedies with respect to his retaliation claim. See Dkt. No. 57-15 at 1, 3,
5; see also Woodford, 548 U.S. at 93; Feliz, 2019 WL 5197216, at *4.
B. Availability of Administrative Remedies: Excessive Force
Since Hamilton has demonstrated that plaintiff failed to exhaust his administrative
remedies for his excessive force claim, the undersigned must next assess whether
administrative remedies were available to plaintiff. 	To successfully allege unavailability,
“[a]n inmate must point to some affirmative action by a prison official that prevented the
inmate from availing himself of the grievance procedures.” 	Martinaj v. Uhler, No. 9:18-
CV-257 (BKS/DJS), 2021 WL 3793769, at *7 (N.D.N.Y. Aug. 26, 2021) (citing Grafton v.
Hesse, 783 F. App’x 29, 31 (2d Cir. 2019) (summary order) (“We have held that where
there has been no affirmative action by prison staff actually preventing prisoners from
pursuing administrative remedies, those remedies are not unavailable under the PLRA.”)
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(citing Ruggiero v. Cnty. of Orange, 467 F.3d 170, 178 (2d Cir. 2006))). 	Examples of
prison officials’ affirmative acts include verbal and physical threats of retaliation, denial of
“forms and writing materials, and a refus[al] to accept or forward [the] plaintiff’s appeals.”
Perez v. Furina, No. 9:10-CV-518 (TJM/CFH), 2016 WL 1237863, at *3 (N.D.N.Y. Jan.
19, 2016), report and recommendation adopted, No. 9:10-CV-518, 2016 WL 1238243
(N.D.N.Y. Mar. 29, 2016) (citing Ruggiero, 467 F.3d at 175); see also Amador v. Andrews,
655 F.3d 89, 103 (2d Cir. 2011) (holding that “verbal and physical threats of retaliation,
physical assault, denial of grievance forms or writing implements, and transfers constitute
such affirmative action.”) (citing Hemphill v. New York, 380 F.3d 680, 688 (2d Cir. 2004)
overruled on other grounds by Hemphill v. New York, 595 U.S. 140 (2022), and Ziemba
v. Wezner, 366 F.3d 161, 162 (2d Cir. 2004)); see also Cicio v. Alvarez, No. 19-CV-9883
(CS), 2022 WL 1003796, at *5 (S.D.N.Y. Apr. 4, 2022) (“Specific threats of retaliation or
intimidation by prison employees can render administrative remedies unavailable.”)
(quoting Lutz v. Francisco, No. 9:20-CV-240 (GTS/DJS), 2020 WL 9264825, *5 (N.D.N.Y.
Dec. 10, 2020)).
“[T]he PLRA requires ‘proper exhaustion,’ which ‘means using all steps that the
agency holds out, and doing so properly . . . .’” Ruggiero, 467 F.3d at 176 (2d Cir. 2006)
(quoting Woodford, 548 U.S. at 90; quoting Pozo v. McCaughtry, 286 F.3d 1022, 1024
(7th Cir. 2002)) (additional internal quotation marks omitted). 	The PLRA’s “exhaustion
requirement hinges on the ‘availability’ of administrative remedies.” 	Ross v. Blake, 578
U.S. 632, 642 (2016) (brackets omitted) (quoting Booth v. Churner, 532 U.S. 731, 738
(2001)). 	“An inmate . . . must exhaust available remedies, but need not exhaust
unavailable ones.” 	Id. 	Availability means “an inmate is required to exhaust those, but
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only those, grievance procedures that are ‘capable of use’ to obtain ‘some relief for the
action complained of.’” Id. (quoting Booth, 532 U.S. at 738).
There are “three kinds of circumstances in which an administrative remedy . . . is
not capable of use to obtain relief.” 	Ross, 578 U.S. 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. (citing Booth, 532 U.S. at 736). “Next, an
administrative scheme might be so opaque that it becomes, practically speaking,
incapable of use.” 	Id. 	Lastly, administrative remedies are unavailable where “prison
administrators thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Id. at 644.
The Second Circuit has noted that “the three circumstances discussed in Ross do
not appear to be exhaustive,” but “illustrations of unavailability in Ross nonetheless guide
the Court’s inquiry.” 	Thomas v. Waugh, No. 9:13-CV-0321 (MAD/TWD), 2018 WL
3121622, at *10 (N.D.N.Y. Feb. 28, 2018), report and recommendation adopted, No. 9:13-
CV-00321, 2018 WL 1508563 (N.D.N.Y. Mar. 27, 2018) (citing Williams, 829 F.3d at 123
n.2 (2d. Cir. 2016) and Mena v. City of New York, No. 13-CV-2430 (RJS), 2016 WL
3948100, at *4 (S.D.N.Y. July 19, 2016)).
Although plaintiff does not specifically raise the issue of unavailability, liberally
construing plaintiff’s complaint, deposition testimony, and opposition papers to the other
defendants’ motion for summary judgment and applying due solicitude, plaintiff essentially
alleges that the grievance process was unavailable because he feared that Hamilton
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would physically retaliate against him following the July 27, 2022, assault. See Dkt. No.
1 at 6; Dkt. No. 57-14 at 58.
1. Excessive Force
As stated, plaintiff’s complaint alleges that after he was assaulted on July 27, 2022,
he was told that he “better hold down the ass whoopin [sic] they just gave [him] or [he’ll]
be killed [and] have a weapon planted on [his] person or [his] cell.” Dkt. No. 1 at 6; Dkt.
No. 1 at 28 (“I was . . . told to hold down the ass whopping I just got if I don’t want another
fabricated ticket written on me or a weapon planted on me or in my cell.”). Plaintiff further
testified that Pflueger, Marren, Hamilton, and Harvey were present when he “was told to
hold it down, the ass whooping I had just gotten, and that they— that they wouldn’t
retaliate, I wouldn’t get a ticket, and that they wouldn’t, in short terms, fucking kill me if I
just held it down and did the right thing.” Dkt. No. 57-14 at 58.
Although plaintiff does not specify who made the statement, assuming arguendo,
that Pflueger, Marren, Hamilton, or Harvey made the statement, this statement would
normally satisfy the third Ross exception and render the grievance procedure unavailable.
See Ross, 578 U.S. at 643; see also Hunter v. Rouse, No. 9:20-CV-65 (LEK/DJS), 2020
WL 8474744, at *4 (N.D.N.Y. Sept. 17, 2020), report and recommendation adopted, 2021
WL 101083 (N.D.N.Y. Jan. 12, 2021) (holding that the plaintiff’s allegation that a defendant
“told him that if he told ‘anyone what happened, the next time [the plaintiff] won’t walk
away[,]’” was “more than a generalized fear of retaliation[,]” and, therefore, “sufficiently
reasonable to render administrative remedies unavailable.”); Galberth v. Durkin, No. 9:14-
CV-0115 (BKS/ATB), 2014 WL 7409915, at *8 (N.D.N.Y. Dec. 31, 2014) (holding that the
defendants’ threats that the plaintiff “would be beaten within an inch of his life” if he told
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anyone about the alleged assault was more than a generalized fear of retaliation and
excused the plaintiff’s failure to exhaust).
Whether one of the defendants or a nonparty made such a statement, plaintiff filed
at least six grievances at Auburn CF between July 30, 2022, and August 8, 2022; a
grievance on August 31, 2022, against the corrections officers he claims were involved in
the August 12, 2022, assault; and twenty-five additional grievances at Five Points CF
between September 1, 2022, and September 19, 2023. 	See Dkt. No. 57-5 at 5-8; Dkt.
No. 57-7 at 5-7; Dkt. No. 57-15 at 4. “[T]he Second Circuit has concluded that when an
inmate files a grievance, notwithstanding the threats of retaliation and intimidation of
which that inmate complains, the failure to fully exhaust under the PLRA will not be
excused on this ground.” Grant v. Kopp, No. 9:17-CV-1224 (GLS/DEP), 2019 WL 368378,
at *6 (N.D.N.Y. Jan. 3, 2019), report and recommendation adopted, No. 9:17-CV-1224
(GLS/CFH), 2019 WL 367302 (N.D.N.Y. Jan. 30, 2019) (citing McNab v. Doe, 686 F.
App’x. 49, 51 (2d Cir. 2017) (summary order), affirming 2016 WL 324994 (N.D.N.Y. Jan.
27, 2016) (Suddaby, C.J.)). In reaching this conclusion, the Second Circuit noted that:
[Plaintiff] asserted that defendants tried to intimidate him, and intimidation
can excuse the failure to exhaust. However, none of the actions allegedly
taken by the defendants actually prevented [plaintiff] from submitting his
complaint letter. [Plaintiff] was able to take the first step in the grievance
process, and nothing in the record suggests he was intimidated from taking
the next step (appealing the rejection of his informal grievance).
McNab, 686 F. App’x at 51 (internal citations omitted).
The undersigned concludes that because plaintiff continued to avail himself of the
grievance procedure immediately following these threats, plaintiff was not prevented from
“taking advantage of a grievance process through machination, misrepresentation, or
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intimidation.” Ross, 578 U.S. at 644. Thus, plaintiff has failed to show unavailability on
this ground. See id.
2. First and Second Ross Exceptions
Plaintiff has not alleged that the grievance procedures at either Auburn CF or Five
Points CF were “dead end[s]” or “so opaque” as to be rendered “incapable of use.” Ross,
578 U.S. at 643. 	Further, plaintiff testified that he was familiar with the grievance
procedure and appeals process and filed grievances about unrelated matters. See Dkt.
No. 57-14 at 36. 	Plaintiff has filed seventy-six facility-level grievances and appealed
eighty-one facility-level grievances to CORC. See Dkt. No. 57-5 at 2; Dkt. No. 57-7 at 2;
Dkt. No. 57-9 at 2. 	“This shows that Plaintiff did not view the filing of grievances as a
dead end. It also demonstrates that he clearly understood DOCCS’ inmate grievance
policy and could navigate it when he wished to pursue a grievance.” Walker v. Ball, No.
9:16-CV-437 (DNH/DJS), 2018 WL 1415212, at *5 (N.D.N.Y. Feb. 16, 2018), report and
recommendation adopted, No. 9:16-CV-437 (DNH/DJS), 2018 WL 1406632 (N.D.N.Y.
Mar. 20, 2018). “As such, the first two exceptions identified under Ross are not applicable
here.” Id. (citing Gonzalez v. Coburn, No. 6:16-CV-06174 (MAT), 2017 WL 6512859, at
*6 (W.D.N.Y. Dec. 20, 2017) (“Plaintiff's decision to affirmatively participate at all three
levels in the inmate grievance program demonstrates that the program was neither a
dead-end nor so opaque that Plaintiff could not avail himself of it.”)).
4. Time to File a Grievance has Expired
The alleged incident of excessive force occurred on July 27, 2022. See Dkt. No.
1 at 5-6. 	Plaintiff had until August 17, 2022, to file a grievance with the IGRC. 	See 7
N.Y.C.R.R. § 701.5(a) (“An inmate must submit a complaint to the clerk within 21 calendar
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days of an alleged occurrence on an inmate grievance complaint form.”). 	The record
does not indicate, and plaintiff has not asserted, that he requested an extension of time
to file his grievance. See 7 N.Y.C.R.R. § 701.6(g)(1) (An inmate may file a request for an
extension of time to file a grievance within forty-five days of the alleged incident.).
“Ordinarily, the proper remedy where a prisoner has failed to satisfy the exhaustion
requirement is to dismiss the complaint without prejudice, to give the inmate a chance to
exhaust his administrative remedies and then refile his complaint.” Robinson v. Harder,
No. 9:21-CV-01322 (DNH/CFH), 2024 WL 1469076, at *9 (N.D.N.Y. Feb. 20, 2024)
(quoting Brown v. Napoli, No. 08-CV-6477L (DGL), 687 F. Supp. 2d 295, 298 (W.D.N.Y.
2009; citing Chisholm v. N.Y.C. Dep’t of Corr., No. 08-CV-8795, 2009 WL 2033085, at *3
(S.D.N.Y. July 13, 2009)). 	“This is so even when the issue is decided on a motion for
summary 	judgment.” 	Mateo 	v. 	Corebine, No. 	09-CV-4811 	(RJH/DCF), 	2010 WL
3629515, at *7 (S.D.N.Y. Sept. 17, 2010) (collecting cases). However, if an inmate has
failed to exhaust available administrative remedies and the time in which to exhaust has
expired, it is proper for the court to dismiss the complaint with prejudice because any
attempt to exhaust would be futile. 	See Berry v. Kerik, 366 F.3d 85, 88 (2d Cir. 2004);
see also Richard v. LeClaire, 9:15-CV-0006 (BKS/TWD), 2019 WL 5197041, at *9
(N.D.N.Y. May 6, 2019) (“Because [the p]laintiff's failure to exhaust is at this point
incurable, 	the 	Court 	recommends 	that 	summary 	judgment 	for 	failure 	to 	exhaust
administrative remedies be with prejudice.”), report and recommendation adopted, 2019
WL 4233184 (N.D.N.Y. Sept. 6, 2019).
Plaintiff’s failure to exhaust his available administrative remedies relating to the
claim of excessive force on July 27, 2022, is no longer curable. 	The time for plaintiff to
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exhaust his administrative remedies has expired. 	It is recommended that Hamilton’s
motion for summary judgment be granted as to plaintiff’s claim of excessive force, and
that this claim be dismissed with prejudice.9 See Berry, 366 F.3d at 88.
C. Retaliation
1. Legal Standard
To establish a First Amendment retaliation claim, an incarcerated plaintiff must
show “(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.” Brandon v. Kinter, 938 F.3d 21, 40 (2d Cir.
2019) (quoting Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004)); see also Espinal v.
Goord, 558 F.3d 119, 128 (2d Cir. 2009). 	“If a plaintiff establishes these elements, a
defendant may still avoid liability by establishing that he would have taken the adverse
action even in the absence of the protected conduct.” Morrow v. Bauersfeld, No. 21-2928-
CV, 2022 WL 17097590, at *1 (2d Cir. Nov. 22, 2022) (quoting Brandon, 938 F.3d at 40
(internal quotations omitted)).
Inmate retaliation claims should be viewed “with skepticism and particular care,
given that 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.” 	Smith v. New York State, No. 23-6601-
CV, 2024 WL 4746554, at *3 (2d Cir. Nov. 12, 2024) (quoting Dolan v. Connolly, 794 F.3d
9 As the undersigned concluded that plaintiff failed to exhaust his administrative remedies before
commencing this action, it is not necessary for the undersigned to reach the merits of defendants’
arguments for the excessive force. See Porter v. Uhler, No. 9:17-CV-47 (MAD/TWD), 2019 WL 2479000,
at *16 (N.D.N.Y. Feb. 19, 2019), report and recommendation adopted, No. 9:17-CV-47 (MAD/TWD), 2019
WL 1292226 (N.D.N.Y. Mar. 21, 2019), aff'd, 790 F. App'x 329 (2d Cir. 2020) (“Because the Court is
recommending that summary judgement be granted to Defendants on this claim for failure to exhaust
administrative remedies, the Court declines to reach the parties’ remaining arguments.”).
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290, 295 (2d Cir. 2015) (internal quotation marks and citation omitted)). Thus, such claims
must be “supported by specific and detailed factual allegations.” Id. 	However, “direct
evidence of retaliatory intent is not required to overcome summary judgment on a First
Amendment retaliation claim.” Fabrizio v. Rielly, No. 9:20-CV-0011 (GTS/ML), 2022 WL
18402299, at *10 (N.D.N.Y. Dec. 15, 2022), report and recommendation adopted, No.
9:20-CV0011 (GTS/ML), 2023 WL 356204 (N.D.N.Y. Jan. 23, 2023) (quoting Vaher v.
Town of Orangetown, 133 F. Supp. 3d 574, 596 (S.D.N.Y. 2015) (internal quotation marks
omitted)). “[C]ircumstantial evidence alone can be sufficient to meet th[e] burden of proof
for a retaliation claim.” Booker v. Griffin, No. 16 CIV. 00072 (NSR), 2024 WL 756166, at
*14 (S.D.N.Y. Feb. 23, 2024) (quoting Rodriguez v. McClenning, 399 F. Supp. 2d 228, 236
(S.D.N.Y. Apr. 22, 2005)).
“An adverse action is defined as retaliatory conduct that would deter a similarly
situated individual of ordinary firmness from exercising his or her constitutional rights.”
Brandon, 938 F.3d at 40. (citing Davis, 320 F.3d at 353). 	“Otherwise, the retaliatory act
is simply de minimis, and therefore outside the ambit of constitutional protection.”
Encarnacion v. Connors, No. 9:21-CV-00986 (MAD/TWD), 2023 WL 6546247, at *13
(N.D.N.Y. Aug. 	7, 	2023), 	report 	and 	recommendation 	adopted, 	No. 	9:21-CV-986
(MAD/TWD), 2023 WL 6057393 (N.D.N.Y. Sept. 18, 2023) (citation omitted).
“[E]valuating causal connection in the context of a retaliation claim is a fact-specific
inquiry.” 	Williams v. Cuomo, No. 21-CV-1180 (LJV), 2024 WL 2702206, at *4 (W.D.N.Y.
May 24, 2024) (citing Espinal, 558 F.3d at 129). 	“In determining whether a causal
connection exists between a plaintiff's protected activity and a prison official’s actions” the
Court may consider: “(i) the temporal proximity between the protected activity and the
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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.” Waters v. Jacobsen, No. 9:18-CV-196 (MAD/ML), 2020 WL 1527054, at *6
(N.D.N.Y. Mar. 31, 2020) (quoting Cole v. New York State Dep’t of Corr. Servs., No. 9:10-
CV-1098, 2012 WL 4491825, *11 (N.D.N.Y. Aug. 31, 2012)). “No bright line test has been
drawn to define the outer limits beyond which a temporal relationship is too attenuated to
establish a causal relationship between the exercise of a federal constitutional right and
an allegedly retaliatory action.” 	Fabrizio, 2022 WL 18402299, at *10 (quoting Espinal,
558 F.3d at 129) (internal quotations omitted). 	Still, “courts in the Second Circuit have
held that an adverse action taken as much as eight months after the protected activity
indicated a causal connection.” 	Burrell v. DOCCS, 655 F. Supp. 3d 112, 130 (N.D.N.Y.
2023) (quoting Grant v. Bethlehem Steel Corp., 622 F.2d 43, 45-46 (2d Cir. 1980)).
a. Protected Activity
Plaintiff’s many grievances, litigation against various officials at Auburn CF, and
writing letters to Auburn CF and DOCCS officials constitute protected conduct. See Dkt.
No. 1 at 19-32; Dkt. No. 57-16. See Fabrizio, 2022 WL 18402299, at *9 (citing Johnson
v. Eggersdorf, 8 F. App’x 140, 144 (2d Cir. 2001) (summary order) (holding that submitting
a grievance is constitutionally-protected conduct)); see also Brandon, 938 F.3d at 40
(citing Davis v. Goord, 320 F.3d 346, 352-53 (2d Cir. 2003) (“The filing of prison
grievances is a protected activity.”)); Houston v. Zen Zen, 388 F. Supp. 2d 172, 174
(W.D.N.Y. 2005) (“The filing of lawsuits or prison grievances is a constitutionally protected
activity.”) (citing Graham v. Henderson, 89 F.3d 75, 80 (2d Cir.1996) and Franco v. Kelly,
854 F.2d 584, 590 (2d Cir.1988)).
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b. Adverse Action
Between April 15, 2022, and July 15, 2022, plaintiff filed eleven grievances. See
Dkt. No. 64 at 10. 	On August 5, 2022, plaintiff wrote a letter to Commissioner Annucci.
See Dkt. No. 1 at 27. On August 7, 2022, plaintiff wrote a letter to Captain Gilmore. See
id. at 26-27. 	On August 11, 2022, plaintiff wrote a letter to DSS Stachowski. 	See id. at
31-32.
On August 8, 2022, nonparty inmate Quick approached plaintiff and “threatend [sic]
to break [his] jaw [and] kill [him]” because the C.O.s at Auburn CF were complaining about
how plaintiff filed grievances and wrote letters to DSS Stachowksi. Dkt. No. 1 at 7-8. On
August 12, 2022, plaintiff witnessed Harvey and Hamilton speak with nonparty inmate
Quick approximately twenty to thirty minutes before Quick assaulted plaintiff and stabbed
him nine times. 	See Dkt. No. 57-14 at 101-102; Dkt. No. 1 at 8. 	Plaintiff stated that
Marren, Harvey, Hamilton, Vitale, and Pflueger were standing at the end of company
where plaintiff’s cell was located and witnessed the assault. 	See Dkt. No. 57-14 at 94-
95.
The undersigned concludes that a reasonable fact-finder could find that C.O.s
instructing an inmate to assault another inmate in retaliation for the inmate’s filing of
grievances and writing letters to facility administrators constitutes an adverse action. See
Brandon, 938 F.3d at 42-43 (holding that a jury “could conclude that an inmate of ordinary
firmness would be deterred from filing additional grievances if doing so would place him
in harm’s way and at the mercy of other inmates. We do not doubt that exposing a prisoner
to potential assault by another inmate can constitute an adverse action.”); see also
Pusepa v. Annucci, No. 17-CV-1765 (RA), 2019 WL 690678, at *15 (S.D.N.Y. Feb. 19,
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2019) (“[A] correction officer who orchestrates rather than directly commits a violent act
against an inmate may commit an adverse action for retaliation purposes.”) (citation
omitted)).
c. Hamilton
In support of his motion, Hamilton submits a declaration stating that he “was
present at [Auburn CF] on August 12, 2022, and [he] assisted plaintiff after the incident
while other officers placed the other involved incarcerated individual in mechanical
restraints.” Dkt. No. 83-3 at 2. Hamilton denies “ever directing or requesting that another
incarcerated individual assault plaintiff.” 	Id. 	He also states that he is “unaware of any
complaints plaintiff filed in August 2020 about an alleged March 2020 assault” and
“unaware of any complaints/grievances plaintiff filed against [him] prior to August 12,
2022.” Id.
As stated above, plaintiff alleges that on August 12, 2022, Howard, Hamilton,
Marren, Vitale, and Pflueger ordered nonparty inmate Quick to “assault [plaintiff] [and]
stab [him] to death.” 	Dkt. No. 1 at 8. 	Platiniff testified that he witnessed Harvey and
Hamilton approach nonparty inmate Quick’s cell and speak to Quick, but he could not
hear their conversation. 	See Dkt. No. 57-14 at 101-103. 	Shortly thereafter, Quick
assaulted plaintiff and stabbed him nine times. See id. at 101-05. Plaintiff also testified
that immediately prior to the assault, Marren, Harvey, Hamilton, Vitale, and Pflueger were
standing at the end of company, where plaintiff’s cell was located. 	See id. at 94-95.
Plaintiff testified that during the assault, he saw Hamilton and the other defendants at the
end of his company, “straight ahead . . . just standing there.” 	Dkt. No. 14 at 93, 96.
Plaintiff stated, “[t]hey were just standing there, watching it [sic]. They weren’t trying to
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help me. They weren’t trying to protect me, nothing [sic]. They stood there and let it
happen.” Id. at 105.10
Based on the foregoing, there is a genuine question of material fact as to whether
Hamilton instructed Quick to assault plaintiff and whether Hamiton was present and
witnessed the August 12, 2022, assault. See Wright, 554 F.3d at 266.
This Court has previously granted summary judgment where the plaintiffs’ bare
testimonies were refuted by sworn affidavits and documentary evidence. 	In Johnson v.
Brown, the plaintiff filed a Section 1983 lawsuit claiming excessive force after C.O.s
allegedly assaulted him. See Johnson v. Brown, No. 9:09-CV-0002 (GTS/DEP), 2011 WL
1097864, at *1 (N.D.N.Y. Mar. 22, 2011). The plaintiff testified that he saw the defendants
during the assault but provided no other support for his claim. See id. at 6. In support of
their motion for summary judgment, the defendants proffered sworn affidavits and their
time sheets, establishing that, at the time of the alleged assault, one defendant was in a
different part of the facility and “never [saw] or [spoke] to [the] Plaintiff at that time[,]” and
10 Plaintiff testified that Marren, Hamilton, Harvey, Vitale, and Pflueger witnessed the August 12, 2022,
assault and failed to intervene. See Dkt. No. 57-14 at 105. However, this allegation does not appear in
plaintiff’s complaint, supporting documentation, or opposition to defendants’ motion for summary judgment.
See generally Dkt. No. 1; Dkt. No. 64. To the extent that this testimony could be read as seeking to raise a
claim alleging failure to protect, plaintiff has not stated that he filed a grievance alleging Marren, Hamilton,
Harvey, Vitale, and Pflueger failed to protect him. 	Further, even assuming arguendo, that plaintiff’s
complaint properly raised a claim alleging failure to protect against Marren, Hamilton, Harvey, Vitale, and
Pflueger, he has not alleged, nor has he shown, that he filed a grievance alleging failure to protect or
exhausted such a claim. See Edwards v. Pistner, No. 10-CV-0322, 2015 WL 7288697, at *4-5 (W.D.N.Y.
Nov. 17, 2015) (holding that the plaintiff failed to exhaust his failure to protect claim because he failed to file
a grievance and exhaust the three-step IGRC grievance process); Chambers v. Mason, No. 9:20-CV-128
(DNH/DJS), 2021 WL 6205553, at *3 (N.D.N.Y. Dec. 3, 2021), report and recommendation adopted, No.
9:20-CV-128, 2022 WL 19358 (N.D.N.Y. Jan. 3, 2022) (citing 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)(“Plaintiff's failure to protect claim is one that must be exhausted under the PLRA.”).
Accordingly, the undersigned will not address this claim further because plaintiff did not raise this claim in
his complaint, file a grievance alleging failure to protect against Marren, Hamilton, Harvey, Vitale, and
Plueger, nor did he demonstrate that he fully exhausted such a grievance before commencing this suit.
See Torres, 672 F.Supp. 2d at 344; Simpson, No. 2021 WL 7367083, at *9; Jackson, 2023 WL 4710869, at
*4; Gibbs, 2019 WL 5191506, at *3; Sankara, 2018 WL 4610686, at *8.
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the other defendant was away on vacation. 	See id. at 7. 	In granting the defendants’
motion for summary judgment, the Court determined that the “Plaintiff's only evidence
establishing the occurrence of the assault . . . is his self-contradictory, incomplete
deposition testimony that is wholly unsupported by the record.” 	Id. 	The Court further
concluded that the defendants’ testimony, which was corroborated by documentary
evidence, refuted the plaintiff’s unsupported testimony. See id.
Similarly, in McMaster v. LaBarge, the plaintiff claimed that several C.O.s assaulted
and raped him. 	See McMaster v. LaBarge, No. 9:15-CV-578 (DNH/CFH), 2018 WL
4212033, at *7 (N.D.N.Y. Apr. 10, 2018), report and recommendation adopted, No. 9:15-
CV-578 (DNH/CFH), 2018 WL 4211912 (N.D.N.Y. Sept. 4, 2018). 	The plaintiff alleged
that he was “face down” during the assault and the movant “stood behind him.” Id. The
defendant supported his motion for summary judgment with a declaration stating that he
was not at the facility on the night of the alleged incident and a copy of his time card
documenting that he switched shifts with another C.O. 	See id. 	The Court granted the
movant’s motion for summary judgment, holding that the “plaintiff has not produced
evidence creating a genuine issue of material fact as to whether [the defendant] was
present during the alleged . . . assault.” 	Id.; see also Louis-Charles v. Baker, No. 9:16-
CV-1417 (MAD/CFH), 2018 WL 5728054, at *10 (N.D.N.Y. July 30, 2018), report and
recommendation 	adopted 	sub 	nom. 	Louis-Charles 	v. 	Barker, 	No. 	9:16-CV-1417
(MAD/CFH), 2018 WL 4299982 (N.D.N.Y. Sept. 10, 2018) (granting summary judgment
where the plaintiff “failed to produce evidence, aside from his conclusory allegations” and,
thus, could not demonstrate a genuine question of material fact as to whether the
defendant was present at the time of the assault, and the defendant supported his motion
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with an affidavit and a copy of an incident report stating that the movant was not involved
in the incident and not in that area of the facility at the time of the assault.)
Here, plaintiff and Hamilton’s facts conflict as to whether Hamilton instructed Quick
to assault plaintiff. Although Hamilton’s declaration is made under the penalty of perjury,
Hamilton does not submit any documentary evidence to support his claim that he did not
retaliate against plaintiff. 	Further, Hamilton does not refute plaintiff’s testimony that
plaintiff saw him speak with Quick immediately prior to the August 12, 2022, assault and
at the end of the company while he was being assaulted. See Dkt. No. 57-14 at 101-105.
Rather, Hamilton states that he was “present” at Auburn CF on August 12, 2022, and
“assisted plaintiff after the incident while other officers placed the other incarcerated
individual in mechanical restraints.” 	Dkt. No. 83-3 at 2. 	Hamilton does not state where
he was before or at the time of the alleged assault.
Viewing the facts in the light most favorable to plaintiff, due to the parties’ conflicting
statements, a reasonable fact-finder could conclude that Hamilton spoke with Quick prior
to the assault, was present at the end of the company and witnessed the assault take
place, or that the assault occurred in retaliation for the August 2022 letters and complaints
plaintiff wrote to Commissioner Annucci, Captain Gilmore, and DSS Stachowski. 	See
Dkt. No. 1 at 23, 27, 31; Hendriks v. Delutis, No. 9:20-CV-1035 (MAD/ML), 2023 WL
4740173, at *2 (N.D.N.Y. July 24, 2023) (citing Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citing Anderson, 477 U.S. at 255)) (“In assessing the record to
determine whether any such issues of material fact exist, the court is required to resolve
all ambiguities and draw all reasonable inferences in favor of the nonmoving party.).
“Therefore, because a genuine issue of material fact exists regarding retaliatory intent it
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is recommended that [Hamilton’s] motion for summary judgment be denied as to Plaintiff's
First Amendment retaliation claim[].” Rodriguez v. Monroe, No. 9:19-CV-1244
(GTS/CFH), 2021 WL 5095544, at *12 (N.D.N.Y. July 2, 2021), report and
recommendation adopted, No. 9:19-CV-1244 (GTS/CFH), 2021 WL 4025761 (N.D.N.Y.
Sept. 3, 2021); see also Johnson, 2011 WL 1097864, at *7; Louis-Charles, 2018 WL
5728054, at *10; McMaster, 2018 WL 4212033, at *7.
VI. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby:
RECOMMENDED, that defendants’ motion for summary judgment (Dkt. No. 83) be
GRANTED IN PART AND DENIED IN PART as follows:
1) 	Insofar 	as 	Hamilton 	seeks 	dismissal 	of 	plaintiff’s 	Eighth Amendment
excessive force claim, such motion be GRANTED, and such claim be DISMISSED
with prejudice;
2) 	Insofar as Hamilton seeks dismissal of plaintiff’s First Amendment retaliation
claim, such motion be DENIED; it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
on all parties in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), 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 (14) DAYS WILL PRECLUDE APPELLATE REVIEW.
Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and
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Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. §636(b)(1); FED. R. CIV P. 6(a),
6(e), 72.11
Dated: February 17, 2026
Albany, New York
11 If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three
additional days will be added to the fourteen-day period, meaning that you have seventeen days from the
date the Report-Recommendation & Order was mailed to you to serve and file objections. See F ED. R. C IV .
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. See id.
§ 6(a)(1)(C).
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